8-K

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

August 13, 2001

(Date of earliest event reported)

FIDELITY NATIONAL FINANCIAL, INC.

(Exact name of Registrant as specified in charter)

Delaware	333-57904	86-0498599
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

17911 Von Karman Avenue, Suite 300, Irvine, CA	92614
(Address of principal executive offices)	(Zip Code)

(949) 622-4333

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed, since last report.)

Page 1 of 3 Pages

TABLE OF CONTENTS

	ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
SIGNATURE
EXHIBIT 1.1
EXHIBIT 4.1
EXHIBIT 4.2
EXHIBIT 4.3
EXHIBIT 5.1

ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.

     On August 20, 2001, Fidelity National Financial, Inc. sold to certain initial purchasers 7.30% Notes due August 15, 2011 in the aggregate principal amount of $250,000,000 pursuant to an Underwriting Agreement dated August 13, 2001. The issuance of the Notes was registered with the Securities and Exchange Commission under the Securities Act of 1933, as amended, pursuant to a Registration Statement filed with the Securities and Exchange Commission on March 30, 2001, as amended by Amendment No. 1 thereto filed on April 19, 2001.

(a) - (b) Not applicable.

(c)  Exhibits.

SIGNATURE

     Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: August 23, 2001 FIDELITY NATIONAL FINANCIAL, INC.

/s/ Alan L. Stinson
Alan L. Stinson
Executive Vice President and Chief
Financial Officer

Exhibit No.	Description of Exhibit	Method of Filing
1.1	Underwriting Agreement by and among Fidelity National Financial, Inc. and Lehman Brothers Inc., Banc of America Securities LLC and Bear, Sterns & Co. Inc. dated August 13, 2001	Filed electronically herewith
4.1	Indenture by and between Fidelity National Financial, Inc. and The Bank of New York dated as of August 20, 2001	Filed electronically herewith
4.2	Certificate of Officer, dated August 20, 2001, pursuant to Sections 1.2, 2.1, 3.1 and 3.3 of Indenture dated as of August 13, 2001	Filed electronically herewith
4.3	7.30% Note due August 15, 2011 of Fidelity National Financial, Inc. in the principal amount of $250,000,000 dated August 20, 2001	Filed electronically herewith
5.1	Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation, dated August 20, 2001	Filed electronically herewith
23.1	Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation	Included in Exhibit 5.1

EX-1.1 3 a75361ex1-1.txt EXHIBIT 1.1 1 EXHIBIT 1.1 $250,000,000 FIDELITY NATIONAL FINANCIAL, INC. 7.30% SENIOR NOTES DUE AUGUST 15, 2011 UNDERWRITING AGREEMENT August 13, 2001 LEHMAN BROTHERS INC. BANC OF AMERICA SECURITIES LLC BEAR STEARNS & CO. INC. c/o Lehman Brothers Inc. Three World Financial Center New York, New York 10285 Ladies and Gentlemen: Fidelity National Financial, Inc., a Delaware corporation (the "Company"), proposes to issue and sell $250,000,000 aggregate principal amount of its 7.30% Senior Notes due August 15, 2011 (the "Notes") to you (the "Underwriters"). The Notes will be issued pursuant to an Indenture dated as of August 20, 2001 (the "Indenture") between the Company and The Bank of New York, as Trustee (the "Trustee"). This agreement (this "Agreement") is to confirm the agreement concerning the purchase of the Notes from the Company by the Underwriters. 1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter that: (a) The registration statement on Form S-3 (File No. 333-57904) with respect to the Notes (i) has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, (ii) has been filed with the Commission under the Securities Act, (iii) has become effective under the Securities Act and is not proposed to be amended and (iv) is not subject to any stop order under the Securities Act suspending the effectiveness of such registration statement or any Rule 462(b) registration statement relating thereto, and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission. If any post-effective amendment to such registration statement has been filed with the Commission prior to the execution and delivery of this Agreement, the most recent such amendment has been declared effective by the Commission. Copies of such registration statement as amended to date have been delivered by the Company to you. 2 For purposes of this Agreement, "Effective Time" means the most recent date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Preliminary Prospectus" means the prospectus included in such registration statement, or amendments thereof, before such registration statement became effective under the Securities Act and any prospectus filed with the Commission by the Company that omitted information required by Rule 430A or 434 of the Rules and Regulations or other information to be included upon pricing in a form of prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations ("Rule 424(b)"), that was used after such effectiveness and prior to the execution and delivery of this Agreement; "Registration Statement" means such registration statement, as amended at the Effective Time, including any documents incorporated by reference therein and, if the Effective Date is on or before the date of this Agreement, all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) in accordance with Section 4(a) hereof and deemed to be a part thereof as of the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and Regulations; "Prospectus" means the form of prospectus relating to the Notes (including the prospectus supplement), as first used to confirm sales of the Notes; and "described in the Prospectus" or "disclosed in the Prospectus" means described or disclosed, as applicable, in the Prospectus or any document incorporated by reference therein. If it is contemplated, at the time this Agreement is executed, that a registration statement will be filed pursuant to Rule 462(b) under the Securities Act before the offering of the Notes may commence, the term "Registration Statement" as used in this Agreement includes such registration statement, as the same may be amended from time to time. Reference made herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein as of the date of such Preliminary Prospectus or Prospectus, as the case may be, and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date of such Preliminary Prospectus or Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus or Prospectus. For purposes of this Section l, all references to the Registration Statement, any post-effective amendments thereto and the Prospectus shall be deemed to include, without limitation, any electronically transmitted copies thereof, including, without limitation, any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system ("EDGAR"). The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus. (b) If the Effective Date is on or before the date of this Agreement, (i) the Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will when they become effective or are first used to confirm sales of the Notes, as the case may be, conform to the requirements of the Securities Act and the Rules and Regulations, (ii) the Registration Statement and any amendment thereto does not and will not, as of the applicable Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) the Prospectus and any amendment or supplement thereto will not, as of the first date of its use to confirm sales of the Notes, contain any untrue statement of a material fact or omit to state any material fact required 2 3 to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Effective Date is after the date of this Agreement, (i) the Registration Statement and the Prospectus and any further amendments or supplements thereto will, when they become effective or are first used to confirm sales of the Notes, as the case may be, conform to the requirements of the Securities Act and the Rules and Regulations, (ii) the Registration Statement and any amendment thereto will not, as of the applicable Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) the Prospectus and any amendment or supplement thereto will not, as of the date on which the Prospectus and any amendment or supplement thereto is first used to confirm sales of the Notes, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon, and in conformity with written information furnished to the Company by you, expressly for inclusion therein. There is no contract or document required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement or to a document incorporated by reference into the Registration Statement which is not described or filed as required. (c) KPMG LLP, whose report is included or incorporated by reference in the Prospectus, are independent certified public accountants with respect to the Company and its Subsidiaries (as defined in Section 13 hereof), as required by the Securities Act and the Rules and Regulations. The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated and conform in all material respects with the Rules and Regulations, except as otherwise noted therein; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly in all materials respects the information required to be stated therein. (d) Each of the Company and its Significant Subsidiaries (as defined in Exhibit A hereto) has been duly organized or formed and is validly existing in good standing under the laws of the jurisdiction of its organization or formation, with full power and authority to own, lease and operate its properties and conduct its business and, in the case of the Company, to enter into and perform its obligations under this Agreement and the Indenture; and each of the Company and its Subsidiaries holds all licenses and is duly registered and qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned, leased or operated by it make such licensure, registration or qualification necessary, except where the failure to be so licensed, registered or qualified would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole. 3 4 (e) All of the outstanding shares of capital stock of each Significant Subsidiary of the Company that is a corporation have been duly authorized and validly issued and are fully paid and nonassessable. Except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interests or other ownership interests of each Significant Subsidiary of the Company are owned directly or indirectly by the Company, free and clear of any material claim, lien, encumbrance, security interest, restriction upon voting or transfer, preemptive rights or any other claim of any third party, except such as are described in the Prospectus. (f) Except as described in or contemplated by the Registration Statement and the Prospectus, there has not been any material adverse change in, or adverse development which, individually or in the aggregate, materially affects or may materially affect, the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole from the respective dates as of which information is given in the Prospectus. (g) Neither (i) the execution or delivery hereof by the Company, (ii) the consummation of the transactions contemplated hereby, (iii) the execution and delivery of the Indenture and the Notes by the Company nor (iv) compliance by the Company with all of the provisions of this Agreement, the Indenture and the Notes, will result in a breach or violation of, or constitute a default under, the certificate of incorporation, by-laws, partnership agreement or other governing documents of the Company or any of its Subsidiaries, or any material agreement, indenture or other instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound, or to which any of their properties is subject, nor will any such action or the performance by the Company of its obligations hereunder violate any material law, rule, administrative regulation or decree of any court, or any governmental agency or body having jurisdiction over the Company, its Subsidiaries or any of their respective properties, or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any of its Subsidiaries. Except for permits, consents, approvals and similar authorizations required under the securities or "Blue Sky" laws of certain jurisdictions, and except for such permits, consents, approvals and authorizations which have been obtained or the failure to obtain would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole or affect the ability of the Company to perform its obligations under this Agreement, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required in connection with the consummation of the transactions contemplated by this Agreement. (h) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company, and is enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (i) Neither the Company nor any of its Subsidiaries (i) is in violation of its certificate of incorporation or by-laws or other governing documents, (ii) is in default, and no 4 5 event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any agreement, indenture or other instrument to which it is a party or by which it is bound or to which any of its properties is subject, except for any such defaults that would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property may be subject, except for any such violations that would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole. (j) The Indenture has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture (i) has been duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), (ii) complies as to form with the requirements of the Trust Indenture Act and (iii) conforms to the description thereof in the Registration Statement and the Prospectus. (k) The Notes have been duly and validly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, free of any preemptive or similar rights to subscribe to or purchase the same arising by operation of law or under the charter or by-laws of the Company or otherwise, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, and the Notes conform, or will conform, to the description thereof in the Registration Statement and the Prospectus. Neither the filing of the Registration Statement nor the offering or sale of the Notes as contemplated by this Agreement gives rise to any rights, other than those which have been duly waived or satisfied, for or relating to the registration of any securities of the Company. The capitalization of the Company as of the date of the most recent balance sheet included in the Prospectus is as set forth in the Prospectus. The Company has all requisite corporate power and authority to issue, sell and deliver the Notes in accordance with and upon the terms and conditions set forth in this Agreement and in the Registration Statement and Prospectus. All corporate action required to be taken by the Company for the authorization, issuance, sale and delivery of the Notes to be sold by the Company hereunder has been validly and sufficiently taken. (l) Each contract, agreement or arrangement to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the 5 6 property or assets of the Company or any of its Subsidiaries is subject, which is material to the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, has been duly and validly authorized, executed and delivered by the Company or its Subsidiary, as applicable; none of such contracts, agreements or arrangements has been assigned by the Company or any of its Subsidiaries to any non-affiliated party other than in the ordinary course of business, and the Company knows of no present condition or fact which would prevent compliance by the Company or any of its Subsidiaries or any other party thereto with the terms of any such contract, agreement or arrangement in accordance with its terms in all material respects, except for any such failures to comply that would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole; neither the Company nor any of its Subsidiaries has any present intention to exercise any right that it may have to cancel any such contract, agreement or arrangement or otherwise to terminate its rights and obligations thereunder, and none of them has any knowledge that any other party to any such contract, agreement or arrangement has any intention not to render full performance in all material respects as contemplated by the terms thereof, except for any such cancellations, terminations or failures to perform that would not, individually or in the aggregate, result in a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole. (m) There is no litigation or governmental proceeding to which the Company or any of its Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is subject or which is pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries that could reasonably be expected to, individually or in the aggregate, result in a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole or which is required to be disclosed in the Prospectus and is not disclosed. (n) The documents incorporated by reference into each Preliminary Prospectus and the Prospectus, at the time they were or are filed with the Commission, conform or will conform, as the case may be, with the requirements of the Securities Act and the Rules and Regulations and the Exchange Act and the rules and regulations adopted by the Commission thereunder, and did not or will not, as the case may be, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (o) The Company has not taken and shall not take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (p) The Notes will be pari passu with all existing and future unsecured and unsubordinated indebtedness of the Company. (q) The conditions for the Company's use of Form S-3 for filing the Registration Statement, as set out in the general instructions to such form, have been satisfied. 6 7 (r) Except as disclosed in the Prospectus, all reinsurance treaties, reinsurance contracts and reinsurance agreements to which the Company or any of its Subsidiaries is a party are in full force and effect, and none of the Company or any of its Subsidiaries is in violation of, or in default in the performance, observance or fulfillment of, any obligation, agreement, covenant or condition contained therein, except where the failure to be in full force and effect and except where any such violation or default would not, singly or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole; none of the Company or any of its Subsidiaries has received any notice from any of the other parties to such treaties, contracts or agreements which are material to its business that such other party intends not to perform in any material respect such treaty, contract or agreement; and the Company and its Subsidiaries have no reason to believe that any of the parties to such treaties, contracts or agreements will be unable to perform such treaty, contract, agreement or arrangement, except where such non-performance would not, singly or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole. (s) Except as disclosed in the Prospectus, none of the Company or any of its Subsidiaries have made any material changes in their insurance reserving practices during the last two years. (t) Each of the Company and its Subsidiaries (i) holds such permits, licenses, consents, exemptions, franchises, authorizations and other approvals from insurance departments and other governmental or regulatory authorities (each, an "Authorization") (including, without limitation, insurance licenses from the insurance regulatory agencies of the various states or other jurisdictions where it conducts business (the "Insurance Licenses")), and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorizations or Insurance Licenses or to make any such filing or notice would not, singly or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, and (ii) to the knowledge of the Company, has fulfilled and performed all material obligations necessary to maintain such Authorizations and Insurance Licenses. Each such Authorization and Insurance License is valid and in full force and effect, and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto, except where the failure so to comply or where the invalidity of such Insurance Licenses or the failure of such Insurance Licenses to be in full force and effect would not, singly or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or Insurance License or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization or Insurance License, except where the revocation, suspension, termination or impairment would not, singly or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole; such Authorizations and Insurance Licenses contain no restrictions that are burdensome to the Company or any of its Subsidiaries, except 7 8 where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole; and no insurance regulatory agency or body has issued any order or decree impairing, restricting or prohibiting the payment of dividends by any of the Subsidiaries to its parent. (u) Neither the Company nor any of its Subsidiaries is an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"), or is subject to regulation as an "investment company" under the 1940 Act. (v) The Company has unsecured non-convertible debt with a term of at least four years rated by a nationally recognized statistical rating organization in one of its four highest generic rating categories. At the time the Registration Statement was filed and at the Effective Time, the Company met the eligibility requirements under the Securities Act for the use of Form S-3, and the aggregate market value of the voting and non-voting common equity of the Company held by non-affiliates of the Company was at least $150 million. (w) The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, "Intellectual Property") necessary to carry on the business now operated by them, and neither the Company nor any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole. (x) The Company and its Subsidiaries have good and marketable title in fee simple to all material real property owned by the Company and its Subsidiaries and good and marketable title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, defects, restrictions or encumbrances of any kind, except (A) as otherwise stated in the Registration Statement and the Prospectus or (B) those which do not, singly or in the aggregate, materially affect the value of all such properties in the aggregate and do not interfere with the use made and proposed to be made of such property by the Company or any of its Subsidiaries considered as one enterprise. All of the leases and subleases material to the business of the Company and its Subsidiaries considered as one enterprise, and under which the Company or any of its Subsidiaries holds properties described in 8 9 the Prospectus, are in full force and effect, and neither the Company nor any of its Subsidiaries has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any of its Subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary of the continued possession of the leased or subleased premises under any such lease or sublease. (y) Except as otherwise stated in the Registration Statement and the Prospectus, and except as would not, singly or in the aggregate, result in a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, (A) neither the Company nor any of its Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, "Hazardous Materials") or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, "Environmental Laws"), (B) neither the Company nor any of its Subsidiaries fails to possess any permit, authorization or approval required under any applicable Environmental Laws or to be in compliance with their requirements, (C) there are no pending or, to the Company's knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company or any of its Subsidiaries and (D) there are no events or circumstances (including costs and potential liabilities to third parties) that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws. 2. Purchase of the Notes by the Underwriters. Subject to the terms and conditions and upon the basis of the representations and warranties herein set forth, the Company agrees to issue and sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a price equal to 98.947% of the principal amount thereof, plus accrued interest, if any, from August 20, 2001, the principal amount of the Notes set forth opposite such Underwriter's name in Schedule I hereto. The Underwriters propose to offer the Notes to the public as set forth in the Prospectus. 3. Delivery of and Payment for Notes. Delivery of the Notes shall be made at such place or places as mutually may be agreed upon by the Company and the Underwriters, at 10:00 A.M., New York City time, on August 20, 2001 or on such later date not more than three Business Days after the foregoing date as shall be determined by you and the Company (the "Closing Date"). Delivery of the Notes shall be made to you by or on behalf of the Company against payment of the purchase price therefor by wire transfer of immediately available funds. Delivery of the Notes shall be made through the facilities of The Depository Trust Company unless you shall otherwise instruct. Time shall be of the essence, and delivery of the Notes at the 9 10 time and place specified in this Agreement is a further condition to the obligations of each Underwriter. 4. Covenants of the Company. The Company covenants and agrees with each Underwriter that: (a) If the Effective Date is on or before the date of this Agreement, the Company shall comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 424(b) not later than the Commission's close of business on the second Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Rules and Regulations. The Company shall advise you, promptly after it receives notice thereof, of the time when, if the Effective Date is on or before the date of this Agreement, any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed. The Company shall notify you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information; the Company shall prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or the Prospectus which, in your opinion, may be necessary or advisable in connection with the distribution of the Notes; and the Company shall not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by you after reasonable notice thereof, such consent not to be unreasonably withheld or delayed. The Company shall advise you promptly of the issuance by the Commission or any State or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus or the Prospectus or suspending the qualification of the Notes for offering or sale in any jurisdiction, or of the institution of any proceedings for any such purpose; and the Company shall use its best efforts to prevent the issuance of any stop order or other such order and, should a stop order or other such order be issued, to obtain as soon as possible the lifting thereof. (b) The Company shall furnish to each of you and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed, and each amendment thereto (excluding exhibits other than this Agreement), the Prospectus and all amendments and supplements to any of such documents (including any document filed under the Exchange Act and deemed to be incorporated by reference in the Preliminary Prospectus or Prospectus), in each case as soon as available and in such quantities as you may from time to time reasonably request. (c) Within the time during which the Prospectus relating to the Notes is required to be delivered under the Securities Act, the Company shall comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions hereof and by the Prospectus. If during such period any event occurs as a result of which the Prospectus as 10 11 then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus or file any document to comply with the Securities Act, the Company shall promptly notify you and shall, subject to Section 4(a) above, amend the Registration Statement or supplement the Prospectus or file any document (at the expense of the Company) so as to correct such statement or omission or to effect such compliance. (d) As soon as practicable, the Company shall make generally available to its security holders (and shall deliver to you) an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (e) Whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated, the Company shall pay or cause to be paid (A) all fees and expenses (including, without limitation, all registration and filing fees and fees and expenses of the Company's accountants but excluding fees and expenses of counsel for the Underwriters) incurred in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), each Preliminary Prospectus, the Prospectus, the Indenture, the Statement of Eligibility and Qualification of the Trustee on Form T-1 filed with the Commission (the "Form T-1") and any amendments or supplements of the foregoing and any documents incorporated by reference into any of the foregoing and the copying, delivery and shipping of this Agreement and Blue Sky Memoranda, (B) all fees and expenses incurred in connection with the preparation and delivery to the Underwriters of the Notes (including the cost of printing the Notes), (C) all filing fees and fees and disbursements of counsel to the Underwriters incurred in connection with the qualification of the Notes under state securities or Blue Sky laws, (D) any fees required to be paid to rating agencies incurred in connection with the rating of the Notes, (E) the fees, costs and charges of the Trustee, including the fees and disbursements of counsel for the Trustee, and (F) all other costs and expenses incident to the performance of its obligations hereunder for which provision is not otherwise made in this Section. Except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters shall pay all of their own costs and expenses, including the fees of their counsel and any advertising expenses incurred in connection with any offers they may make. If the sale of the Notes provided for herein is not consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to Section 8 hereof which prevent this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed or because any other condition of the Underwriters' obligations hereunder is not fulfilled or if the Underwriters shall decline to purchase the Notes for any reason permitted under this Agreement (other than by reason of a default by any of the Underwriters pursuant to Section 7 or if the Underwriters terminate this Agreement under clause (iv), (v) or (vi) of Section 8(b) of this Agreement), the Company shall reimburse the several Underwriters for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with any investigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder. 11 12 (f) During the period of one year from the Closing Date, the Company shall furnish to the Underwriters copies of all reports or other communications furnished to stockholders, all reports or financial statements furnished to or filed with the Commission and all reports and other communications furnished to the Noteholders. (g) Until termination of the offering of the Notes, the Company shall timely file all documents and amendments to previously filed documents required to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act. (h) The Company shall apply the net proceeds from the sale of the Notes as set forth in the Prospectus. (i) Until the 60 days following the Closing Date, the Company shall not, without the prior written consent of Lehman Brothers Inc., directly or indirectly, issue, sell, offer to sell, grant any option for the sale of or otherwise dispose of, any debt securities in the same market as the Notes. 5. Conditions of Underwriters' Obligations. The obligations of the Underwriters hereunder are subject to the accuracy, as of the date hereof and the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof, the Registration Statement and all post-effective amendments to the Registration Statement shall have become effective, all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and no such filings shall have been made without the consent of the Underwriters; no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto or suspending the qualification of the Notes for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to you and complied with to your satisfaction. (b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which in your opinion, or in the opinion of counsel to the Underwriters, is material, or omits to state a fact which, in your opinion, or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) On the Closing Date, you shall have received from O'Melveny & Myers LLP, counsel for the Underwriters, such opinion or opinions with respect to the validity of the Notes and other related matters as you may reasonably request, and such counsel shall have received such documents and information as they reasonably request to enable them to pass upon such matters. 12 13 (d) On the Closing Date there shall have been furnished to you the opinion (addressed to the Underwriters) of Stradling Yocca Carlson & Rauth, a Professional Corporation, counsel for the Company, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the jurisdiction of its incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus. To the knowledge of such counsel, the Company is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned, leased or operated by it makes such qualification necessary (except where the failure to so qualify would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole). (ii) Neither the filing of the Registration Statement nor the offering or sale of the Notes as contemplated by this Agreement gives rise to any rights under any contracts, agreements or understandings known to such counsel, other than those which have been waived or satisfied, for or relating to the registration of any securities of the Company or any of its Subsidiaries. The Company has all requisite corporate power and authority to issue, sell and deliver the Notes in accordance with and upon the terms and conditions set forth in this Agreement and in the Registration Statement and Prospectus. (iii) The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act and the rules and regulations thereunder. (iv) The Notes have been duly authorized and executed by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, assuming due authentication of the Notes by the Trustee, upon delivery to the Underwriters against payment therefor in accordance with the terms of this Agreement, will have been validly issued and delivered, will be entitled to the benefits of the Indenture and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (v) Neither the execution or delivery of this Agreement nor consummation of the transactions contemplated hereby will result in a breach or violation of, or constitute a 13 14 default under, the certificate of incorporation or by-laws of the Company, nor will the performance by the Company of its obligations hereunder violate any California or federal law, rule, administrative regulation of a type typically applicable to similar transactions or (to the knowledge of such counsel) decree (except that such counsel need not express an opinion as to federal or state securities or Blue Sky laws with respect to this subparagraph) of any court or any governmental agency or body having jurisdiction over the Company, its Subsidiaries or their respective properties. Except for permits, consents, approvals and similar authorizations required under the securities or Blue Sky laws of certain jurisdictions and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required of the Company for the valid authorization, issuance, sale and delivery of the Notes. (vi) The Company has all necessary corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by the Company. (vii) The Registration Statement and all post-effective amendments thereto have become effective under the Securities Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before or threatened by the Commission. To the knowledge of such counsel, no order of the Commission directed to any document incorporated by reference in the Registration Statement has been issued, and no challenge by appropriate proceedings has been made to the accuracy or adequacy of any document incorporated by reference in the Registration Statement. (viii) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company, as of their respective effective or issue dates, complied as to form in all material respects with the applicable requirements of the Securities Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations thereunder (except that no opinion need be expressed as to the financial statements or notes thereto or other financial and statistical data contained therein or omitted therefrom). (ix) The Indenture and the Notes conform in all material respects as to legal matters to the respective statements concerning them contained in the Registration Statement and Prospectus. There are no legal proceedings pending or threatened against the Company or any of its Subsidiaries to which such counsel has given substantive attention or in which such counsel has been engaged to represent the Company or any of its Subsidiaries that are required to be disclosed in the Prospectus and are not disclosed. (x) The Company has an authorized capitalization as set forth in the Prospectus as amended or supplemented. (xi) The statements set forth in the Prospectus under the caption "Description of 14 15 the Notes," insofar as they purport to constitute a summary of the terms of the Notes are correct in all material respects. Such opinion shall also contain a statement that in connection with such counsel's participation in the preparation of the Registration Statement and the Prospectus, such counsel has not independently verified the accuracy, completeness or fairness of the statements contained therein (except as otherwise set forth in paragraph (xi) above), and the limitations inherent in the examination made by such counsel and the knowledge available to such counsel are such that such counsel is unable to assume, and does not assume, any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus. However, on the basis of such counsel's examination and participation in conferences with certain officers of the Company, its independent public accountants and representatives of the Underwriters in connection with the preparation of the Registration Statement and the Prospectus, nothing has come to such counsel's attention that would lead it to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Prospectus, on August 13, 2001, or on the date of such opinion, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. However, such counsel need express no belief as to the financial statements and supporting schedules or other financial data contained or incorporated by reference in the Registration Statement or the Prospectus. (e) On the Closing Date there shall have been furnished to you the opinion (addressed to the Underwriters) of the General Counsel of the Company, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters, to the effect that: (i) Each of the Company's Significant Subsidiaries has been duly incorporated or formed as a corporation or partnership, as applicable, and is validly existing as a corporation, a general partnership or a limited partnership under the laws of its jurisdiction of incorporation or formation (and each of the Significant Subsidiaries that is a corporation or a limited partnership is in good standing under the laws of its jurisdiction of incorporation or formation), with full corporate or partnership (as applicable) power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus. (ii) To the knowledge of such counsel, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interests (or such percentage of the partnership interest as is set forth in the respective partnership agreements) or other ownership interests of each Significant Subsidiary are owned directly or indirectly by the Company, free and clear of any perfected security interest. (iii) Neither the execution or delivery of this Agreement nor consummation of the transactions contemplated hereby will result in a breach or violation of, or constitute a default under, the certificate of incorporation, by-laws, partnership agreement or other governing documents of the Significant Subsidiaries or any agreement, indenture or other instrument filed as an exhibit to the Registration Statement or any document incorporated by reference therein. 15 16 (iv) Each document incorporated by reference in the Registration Statement as filed under the Exchange Act complied when so filed as to form in all material respects with the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder (except that no opinion need be expressed as to the financial statements or notes thereto and other financial and statistical data contained therein). (v) The descriptions in the Registration Statement and Prospectus of statutes, regulations, legal or governmental proceedings, to the extent they constitute matters of law and summaries of legal matters are accurate in all material respects. To the knowledge of such counsel, there are no contracts or documents required to be described in the Registration Statement or Prospectus or to be filed as exhibits thereto which are not described or filed as required. (f) There shall have been furnished to you a certificate, dated the Closing Date and addressed to you, signed by the Chairman of the Board or the President or any Senior Vice President and by the Chief Financial Officer of the Company to the effect that: (i) the representations and warranties of the Company contained in this Agreement are true and correct, as if made at and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be complied with or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been initiated or, to the best of their knowledge, threatened; (iii) all filings required by Rule 424(b) and Rule 430A of the Rules and Regulations have been made; (iv) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments or supplements thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (v) since the Effective Date there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth and there has been no document required to be filed under the Exchange Act and the Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed and (vi) no event contemplated by subsection (g) of this Section 5 has occurred. (g) Since the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and in the Prospectus (exclusive of any supplement thereto filed subsequent to the date hereof), neither the Company nor any of its Subsidiaries shall have sustained any loss by fire, flood, accident or other calamity, or shall have become a party to or the subject of any litigation, which is materially adverse to the Company and its Subsidiaries taken as a whole, nor shall there have been a material adverse change in the condition (financial or otherwise), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, regardless of whether arising in the ordinary course of business, which loss, litigation or change, in your judgement, shall render it impractical or inadvisable to proceed with the payment for and delivery of the Notes. (h) On the date hereof and the Closing Date you shall have received letters from KPMG LLP, dated respectively the date hereof and the Closing Date and addressed to you, 16 17 confirming that they are independent certified public accountants within the meaning of the Securities Act and the applicable published Rules and Regulations, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated in the Prospectus as of a date not more than five days prior to the date of such letter, provided that such date shall be after the date of the Prospectus), the conclusions and findings of such firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the execution of this Agreement, and, with respect to the letter delivered on the Closing Date, confirming the conclusions and findings set forth in such prior letter. (i) You shall have been furnished by the Company such additional documents and certificates as you or counsel for the Underwriters may reasonably request. (j) At the time of the Closing, the Company's senior debt shall have a rating of at least Baa3 by Moody's Investors Services, Inc. and BBB- by Standard & Poor's Rating Services. Since the date hereof, there shall not have occurred any downgrading with respect to any debt securities of the Company or any of its Subsidiaries by any "nationally recognized statistical rating organization" as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating). All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and to counsel for the Underwriters. The Company shall furnish to you conformed copies of such opinions, certificates, letters and other documents in such number as you shall reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date, by you. Any such cancellation shall be without liability of the Underwriters to the Company. Notice of such cancellation shall be given to the Company in writing, or by telegraph or telephone and confirmed in writing. 6. Indemnification and Contribution. (a) The Company shall indemnify and hold harmless each Underwriter from and against any loss, claim, damage or liability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement made by the Company in Section 1 hereof, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented, or (iii) the omission or alleged omission to state in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented a material fact required to be stated therein or necessary to make the statements therein not misleading; and shall reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other 17 18 expenses as reasonably incurred by such Underwriter in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action, notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments shall be promptly refunded; provided, however, that the Company shall not be liable under this paragraph 6(a) in any such case to the extent, but only to the extent, that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Underwriters expressly for use in the preparation of the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented. (b) Each Underwriter severally, but not jointly, shall indemnify and hold harmless the Company against any loss, claim, damage or liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented, or (ii) the omission or alleged omission to state in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented a material fact required to be stated therein or necessary to make the statements therein not misleading and shall reimburse the Company promptly after receipt of invoices from the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments shall be promptly refunded; provided, however, that such indemnification or reimbursement shall be available in each such case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter expressly for use therein. (c) Promptly after receipt by any indemnified party under subsection (a) or (b) above of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to so notify the indemnifying party shall not relieve it from any liability which it may have under this Section 6 except to the extent it has been prejudiced in any material respect by such failure or from any liability which it may have to an indemnified party otherwise than under this Section 6. If any such claim or action shall be brought against any indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the 18 19 indemnified party under subsection (a) or (b) above for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; except that the Underwriters shall have the right to employ counsel to represent the Underwriters who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company under such subsection if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters shall have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company, and in the reasonable judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel shall be paid by the Company. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, or actions in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, 19 20 knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in the first sentence of this subsection (d). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it shall promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service shall not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in subsection (c) above). (e) The obligations of the Company under this Section 6 shall be in addition to any liability that the Company may otherwise have, and shall extend, upon the same terms and conditions set forth in this Section 6, to the respective officers and directors of the Underwriters and each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 6 shall be in addition to any liability that the respective Underwriters may otherwise have, and shall extend, upon the same terms and conditions, to each director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act. 7. Substitution of Underwriters. If any Underwriter defaults in its obligation to purchase the principal amount of the Notes which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Notes the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes which the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Notes if the total principal amount of the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 9.09% of the total principal amount of the Notes, and no non-defaulting Underwriters shall be obligated to 20 21 purchase more than 110% of the principal amount of the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other underwriters satisfactory to you who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase the Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements of the Company and the Underwriters contained in Section 6 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the non-defaulting Underwriters or the other underwriters satisfactory to you are obligated or agree to purchase the Notes of a defaulting Underwriter, either you or the Company may postpone the Closing Date for up to seven full Business Days in order to effect any changes that may be necessary in the Registration Statement or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section 7. 8. Effective Date and Termination. (a) This Agreement shall become effective (i) if the Effective Date is on or before the date of this Agreement, at 11:00 A.M., New York City time, on the next Business Day following the date hereof, (ii) if the Effective Date is after the date of this Agreement, at 11:00 A.M., New York City time, on the first full Business Day following the Effective Date or (iii) at such earlier time after the Registration Statement becomes effective as you shall first release the Notes for sale to the public. You shall notify the Company immediately after you have taken any action which causes this Agreement to become effective. Until this Agreement is effective, it may be terminated by the Company by giving notice as hereinafter provided to you, or by you by giving notice as hereinafter provided to the Company except that the provisions of Section 4(e) and Section 6 hereof shall at all times be effective. For purposes of this Agreement, the release of the initial public offering of the Notes for sale to the public shall be deemed to have been made when you release, by telegram or otherwise, firm offers of the Notes to securities dealers or release for publication a newspaper advertisement relating to the Notes, whichever occurs first. (b) Until the Closing Date, this Agreement may be terminated by you by giving notice as hereinafter provided to the Company if (i) the Company shall have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any other condition of the Underwriters' obligation hereunder is not fulfilled, (iii) trading in the Common Stock of the Company shall have been suspended by the Commission or the NYSE, (iv) trading in securities generally on the NYSE shall have been suspended or minimum prices shall have been established on such exchange by the Commission 21 22 or such exchange or other regulatory body or governmental authority having jurisdiction which, in the judgment of Lehman Brothers Inc., make it inadvisable or impractical to proceed with the offering or delivery of the Notes, or a banking moratorium is declared by either federal or New York state authorities, (v) the United States becomes engaged in hostilities or there is an escalation of hostilities involving the United States or there is a declaration of a national emergency or war by the United States which, in the judgment of Lehman Brothers Inc., make it inadvisable or impracticable to proceed with the offering or delivery of the Notes or (vi) there shall have been such a material adverse change in general economic, political or financial conditions, or the effect of international conditions on the financial markets in the United States shall be such, as to, in the judgment of Lehman Brothers Inc., make it inadvisable or impracticable to proceed with the offering or delivery of the Notes. Any termination of this Agreement pursuant to this Section 8 shall be without liability on the part of the Company or any Underwriter, except as otherwise provided in Sections 4(e) and 6 hereof. Any notice referred to above may be given at the address specified in Section 10 hereof in writing or by telegraph or telephone, and if by telegraph or telephone, shall be immediately confirmed in writing. 9. Survival of Certain Provisions. The agreements contained in Section 6 hereof and the representations, warranties and agreements of the Company contained in Sections 1 and 4 hereof shall survive the delivery of the Notes to the Underwriters hereunder and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party. 10. Notices. Except as otherwise provided in the Agreement, (a) whenever notice is required by the provisions of this Agreement to be given to the Company, such notice shall be in writing or by telegraph addressed to the Company at 17911 Von Karman Avenue, Suite 300, Irvine, California 92614, Attention: General Counsel; (b) whenever notice is required by the provisions of this Agreement to be given to the several Underwriters, such notice shall be in writing or by telegraph addressed to you in care of Lehman Brothers Inc., Three World Financial Center, 200 Vesey Street, New York, New York 10285, Attention: Debt Capital Markets, Financial Institutions Group, with a copy to the General Counsel. 11. Information Furnished by Underwriters. The Underwriters severally confirm that the information appearing in the list of names of, and principal amount of Notes to be purchased by, each of the Underwriters, under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus, the concession and reallowance figures appearing in the second paragraph under such caption, the second sentence of the third paragraph under such caption, the statements concerning stabilization activities appearing in the fourth, fifth, and sixth paragraphs under such caption, and the statements concerning internet distribution in the penultimate paragraph under such caption, constitute the only written information furnished by or on behalf of any Underwriter referred to in paragraph (b) of Section 1 hereof and in paragraphs (a) and (b) of Section 6 hereof. 12. Parties. This Agreement shall inure to the benefit of and be binding upon the several Underwriters, the Company and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the 22 23 representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (b) the indemnity agreement of the Underwriters contained in Section 6 hereof shall be deemed to be for the benefit of directors of the Company, officers of the Company who signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement shall be construed to give any person, other than the persons referred to in this paragraph, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 13. Definition of "Business Day" and "Subsidiary." For purposes of this Agreement, (a) "Business Day" means any day on which the New York Stock Exchange, Inc. is open for trading, other than any day on which commercial banks are authorized or required to be closed in New York City, and (b) "Subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations and includes both partnerships and corporations. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. 15. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. 16. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. [Remainder of page intentionally left blank] 23 24 Please confirm, by signing and returning to us two counterparts of this Agreement, that you are acting on behalf of yourselves and the several Underwriters and that the foregoing correctly sets forth the Agreement between the Company and the several Underwriters. Very truly yours, FIDELITY NATIONAL FINANCIAL, INC. By: /s/ MARLAN WALKER ------------------------------------ Name: Marlan Walker ---------------------------------- Title: Executive Vice President --------------------------------- Confirmed and accepted as of the date first above mentioned LEHMAN BROTHERS INC. BANC OF AMERICA SECURITIES LLC BEAR STEARNS & CO. INC. By: LEHMAN BROTHERS INC. AS REPRESENTATIVE OF THE UNDERWRITERS By: /s/ MARTIN GOLDBERG ------------------------------------ Name: Martin Goldberg ---------------------------------- Title: Senior Vice President --------------------------------- S-1 25 SCHEDULE I Underwriting Agreement dated August 13, 2001

Underwriter Principal Amount of ----------- Notes to be Purchased --------------------- LEHMAN BROTHERS INC. $150,000,000 BANC OF AMERICA SECURITIES LLC 50,000,000 BEAR STEARNS & CO. INC. 50,000,000 ------------ TOTAL $250,000,000 ============

26 EXHIBIT A Underwriting Agreement dated August 13, 2001 As used in the Underwriting Agreement, the "Significant Subsidiaries" of the Company are as follows: 1. Fidelity National Title Insurance Co. 2. Fidelity National Title Insurance Co. of New York 3. Chicago Title and Trust Company 4. Ticor Title Insurance Company 5. Chicago Title Insurance Company of Oregon 6. Security Union Title Insurance Company 7. Alamo Title Insurance EX-4.1 4 a75361ex4-1.txt EXHIBIT 4.1 1 EXHIBIT 4.1 Indenture by and between Fidelity National Financial, Inc. and The Bank of New York dated as of August 20, 2001 2 EXHIBIT 4.1 Table of Contents

Page ---- ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......................1 Section 1.1. Definitions............................................................1 Section 1.2. Compliance Certificates and Opinions...................................8 Section 1.3. Form of Documents Delivered to Trustee.................................9 Section 1.4. Acts of Holders........................................................9 Section 1.5. Notices, etc., to Trustee and Company.................................10 Section 1.6. Notice to Holders; Waiver.............................................11 Section 1.7. Headings and Table of Contents........................................11 Section 1.8. Successors and Assigns................................................11 Section 1.9. Separability..........................................................12 Section 1.10. Benefits of Indenture.................................................12 Section 1.11. Governing Law.........................................................12 Section 1.12. Legal Holidays........................................................12 ARTICLE 2 SECURITY FORMS...............................................................12 Section 2.1. Forms Generally.......................................................12 Section 2.2. Form of Trustee's Certificate of Authentication.......................13 Section 2.3. Securities in Global Form.............................................13 Section 2.4. Form of Legend for Securities in Global Form..........................14 ARTICLE 3 THE SECURITIES...............................................................14 Section 3.1. Amount Unlimited; Issuable in Series..................................14 Section 3.2. Denominations.........................................................17 Section 3.3. Execution, Authentication, Delivery and Dating........................17 Section 3.4. Temporary Securities..................................................19 Section 3.5. Registration, Transfer and Exchange...................................19 Section 3.6. Replacement Securities................................................22 Section 3.7. Payment of Interest; Interest Rights Preserved........................23 Section 3.8. Persons Deemed Owners.................................................25 Section 3.9. Cancellation..........................................................25 Section 3.10. Computation of Interest...............................................25 Section 3.11. CUSIP Numbers.........................................................26

i 3 Table of Contents (continued)

Page ---- Section 3.12. Currency of Payment in Respect of Securities............................26 ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE.........................................26 Section 4.1. Termination of Company's Obligations Under the Indenture................26 Section 4.2. Application of Trust Funds..............................................27 Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect ....... Defeasance or Covenant Defeasance.......................................27 Section 4.4. Defeasance..............................................................28 Section 4.5. Covenant Defeasance.....................................................28 Section 4.6. Conditions to Defeasance or Covenant Defeasance.........................28 Section 4.7. Deposited Money and Government Obligations to Be Held in Trust..........30 Section 4.8. Repayment to Company....................................................31 Section 4.9. Indemnity for Government Obligations....................................31 Section 4.10. Reinstatement...........................................................31 ARTICLE 5 DEFAULTS AND REMEDIES..........................................................31 Section 5.1. Events of Default.......................................................31 Section 5.2. Acceleration; Rescission and Annulment..................................33 Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.........34 Section 5.4. Trustee May File Proofs of Claim........................................34 Section 5.5. Trustee May Enforce Claims Without Possession of Securities or Coupons..35 Section 5.6. Delay or Omission Not Waiver............................................35 Section 5.7. Waiver of Past Defaults.................................................35 Section 5.8. Control by Majority.....................................................35 Section 5.9. Limitation on Suits by Holders..........................................36 Section 5.10. Rights of Holders to Receive Payment....................................36 Section 5.11. Application of Money Collected..........................................36 Section 5.12. Restoration of Rights and Remedies......................................37 Section 5.13. Rights and Remedies Cumulative..........................................37 Section 5.14. Waiver of Stay or Extension Laws........................................37 Section 5.15. Undertaking for Costs...................................................37

ii 4 Table of Contents (continued)

Page ---- ARTICLE 6 THE TRUSTEE..................................................................38 Section 6.1. Certain Duties and Responsibilities of the Trustee....................38 Section 6.2. Rights of Trustee.....................................................38 Section 6.3. Trustee May Hold Securities...........................................39 Section 6.4. Money Held in Trust...................................................39 Section 6.5. Trustee's Disclaimer..................................................39 Section 6.6. Notice of Defaults....................................................40 Section 6.7. Reports by Trustee to Holders.........................................40 Section 6.8. Securityholder Lists..................................................40 Section 6.9. Compensation and Indemnity............................................40 Section 6.10. Replacement of Trustee................................................41 Section 6.11. Acceptance of Appointment by Successor................................42 Section 6.12. Eligibility; Disqualification.........................................43 Section 6.13. Merger, Conversion, Consolidation or Succession to Business...........44 Section 6.14. Appointment of Authenticating Agent...................................44 ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY.................................45 Section 7.1. Consolidation, Merger or Sale of Assets Permitted.....................45 Section 7.2. Successor Person Substituted for Company..............................46 ARTICLE 8 SUPPLEMENTAL INDENTURES......................................................46 Section 8.1. Supplemental Indentures Without Consent of Holders....................46 Section 8.2. Supplemental Indentures With Consent of Holders.......................47 Section 8.3. Compliance with Trust Indenture Act...................................48 Section 8.4. Execution of Supplemental Indentures..................................48 Section 8.5. Effect of Supplemental Indentures.....................................48 Section 8.6. Reference in Securities to Supplemental Indentures....................49 ARTICLE 9 COVENANTS....................................................................49 Section 9.1. Payment of Principal, Premium, if any, and Interest...................49 Section 9.2. Maintenance of Office or Agency.......................................49 Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money....50 Section 9.4. Corporate Existence...................................................51

iii 5 Table of Contents (continued)

Page ---- Section 9.5. Insurance.............................................................51 Section 9.6. Reports by the Company................................................51 Section 9.7. Annual Review Certificate; Notice of Defaults or Events of Default....52 Section 9.8. Limitation on Liens...................................................52 Section 9.9. Books of Record and Account; Compliance with Law......................53 Section 9.10. Taxes.................................................................54 Section 9.11. Additional Amounts....................................................54 Section 9.12. Calculation of Original Issue Discount................................54 ARTICLE 10 REDEMPTION...................................................................55 Section 10.1. Applicability of Article..............................................55 Section 10.2. Election to Redeem; Notice to Trustee.................................55 Section 10.3. Selection of Securities to Be Redeemed................................55 Section 10.4. Notice of Redemption..................................................55 Section 10.5. Deposit of Redemption Price...........................................56 Section 10.6. Securities Payable on Redemption Date.................................57 Section 10.7. Securities Redeemed in Part...........................................57 ARTICLE 11 SINKING FUNDS................................................................58 Section 11.1. Applicability of Article..............................................58 Section 11.2. Satisfaction of Sinking Fund Payments with Securities.................58 Section 11.3. Redemption of Securities for Sinking Fund.............................58

iv 6 INDENTURE, dated as of August 20, 2001, between Fidelity National Financial, Inc., a Delaware corporation (the "Company") and The Bank of New York, a New York banking corporation (the "Trustee"). RECITALS The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness ("Securities") to be issued in one or more series as herein provided. All things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been done. For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities: ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.1. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. "Act" shall have the meaning set forth in Section 1.4(a). "Additional Amounts" means any additional amounts which, pursuant to Section 3.1(b)(18), are required by the terms of the Securities of any series, under circumstances specified pursuant to Section 3.1(b)(18), to be paid by the Company in respect of certain Securities of such series specified pursuant to Section 3.1(b)(18). "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. 7 "Agent" means any Paying Agent or Registrar. "Authenticating Agent" means any authenticating agent appointed by the Trustee pursuant to Section 6.14. "Authorized Newspaper" means a newspaper of general circulation, in the official language of the country of publication or in the English language, customarily published on each Business Day whether or not published on Saturdays, Sundays or holidays. Whenever successive publications in an Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers. "Bankruptcy Law" shall have the meaning set forth in Section 5.1. "Bearer Security" means any Security issued hereunder which is payable to bearer. "Board" or "Board of Directors" means the Board of Directors of the Company or any duly authorized committee thereof. "Board Resolution" means a copy of a resolution of the Board of Directors, 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 the certificate, and delivered to the Trustee. "Business Day" when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or particular location are authorized or obligated by law or executive order to close. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution 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 at such time. "Company" means the party named as the Company in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter means such successor. "Company Order" and "Company Request" mean, respectively, a written order or request signed in the name of the Company by two Officers, one of whom must be the Chairman of the Board, the President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller or any Vice President of the Company. "Consolidated Net Tangible Assets" means, with respect to the Company as at any date, the total assets of the Company and its consolidated Subsidiaries determined in accordance with GAAP as they appear on the most recently prepared consolidated balance sheet of the Company as of the end of a fiscal quarter, less (i) all liabilities shown on such consolidated balance sheet that are classified and accounted for as current liabilities or that otherwise would be considered current liabilities under GAAP; and (ii) all assets shown on such consolidated balance sheet that are classified and accounted for as intangible 2 8 assets or that otherwise would be considered intangible assets under GAAP, including, without limitation, franchises, patents and patent applications, trademarks, brand names and goodwill. "Conversion Event" means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and, for the settlement of transactions, by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Union or (iii) any currency unit or composite currency other than the ECU for the purposes for which it was established. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 101 Barclay Street. 21W, New York, New York, 10286, Attention: Corporate Trust Administration. "Currency" means Dollars or any Foreign Currency. "Custodian" shall have the meaning set forth in Section 5.1. "Debt" means indebtedness for borrowed money or evidenced by bonds, notes, debentures or other similar instruments. "Default" means any event which is, or after notice or passage of time, or both, would be, an Event of Default. "Defaulted Interest" shall have the meaning set forth in Section 3.7(b). "Depository" when used with respect to the Securities of or within any series issuable or issued in whole or in part in global form, means the Person designated as Depository by the Company pursuant to Section 3.1 and its successors in such capacity, and if at any time there is more than one such Person, shall be a collective reference to such Persons. "Dollar" and "$" mean the currency of the United States as at the time of payment is legal tender for the payment of public and private debts. "ECU" means the European Currency Unit as defined and revised from time to time by the Council of the European Community. "European Monetary System" means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Community. "European Union" means the European Community, the European Coal and Steel Community and the European Atomic Energy Community. "Event of Default" shall have the meaning set forth in Section 5.1. "Foreign Currency" means any currency, currency unit or composite currency, including, without limitation, the ECU, 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. 3 9 "Funded Debt" means Debt of the Company or any of its Subsidiaries which, under GAAP, would appear as indebtedness on the most recent consolidated balance sheet of the Company, which matures by its terms more than 12 months from the date of such consolidated balance sheet or which matures by its terms in less than 12 months but by its terms is renewable or extendible beyond 12 months from the date of such consolidated balance sheet at the option of the borrower. "GAAP" means generally accepted accounting principles in the United States as in effect on the date of application thereof. "Government Obligations" means securities which are (i) direct obligations of the United States of America or the other government or governments in the confederation which issued the Foreign Currency in which the principal of or any premium or interest on the relevant Security shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other government or governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt. "Holder" means, with respect to a Bearer Security, a bearer thereof or of a coupon appertaining thereto and, with respect to a Registered Security, a person in whose name a Security is registered on the Register. "Indenture" means this Indenture as originally executed or as amended or supplemented from time to time and shall include the forms and terms of particular series of Securities established as contemplated hereunder. "Indexed Security" means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance. "Interest" when used with respect to an Original Issue Discount Security which by its terms bears interest only after maturity, means interest payable after maturity. "Interest Payment Date" when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. "Lien" means any mortgage, pledge, lien, charge, security interest, conditional sale or other title retention agreement or other encumbrance of any nature whatsoever. 4 10 "Maturity" when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repurchase by the Company at the option of the Holder or otherwise. "Officer" means the Chairman of the Board, the President, any Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary of the Company. "Officers' Certificate", when used with respect to the Company, means a certificate signed by two Officers, one of whom must be the Chairman of the Board, the President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Controller or a Vice President of the Company. "Opinion of Counsel" means a written opinion from the general counsel of the Company or other legal counsel. Such counsel may be an employee of or counsel to the Company. "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 5.2. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provisions therefor satisfactory to the Trustee have been made; (iii) Securities, except to the extent provided in Sections 4.4 and 4.5, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article 4; and (iv) Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or whether sufficient funds are available for redemption or for any other purpose, and for the purpose of making the calculations required by Section 313 of the Trust Indenture Act, 5 11 (a) the principal amount of any Original Issue Discount Securities that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, (b) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, (c) the principal amount of a Security denominated in a Foreign Currency shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (a) above) of such Security, and (d) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person authorized by the Company to pay the principal of, premium, if any, or interest on any Securities on behalf of the Company. "Periodic Offering" means an offering of Securities of a series from time to time the specific terms of which Securities, including, without limitation, the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Maturity thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities. "Person" means any individual, corporation, business trust, partnership, joint venture, joint-stock company, limited liability company, association, company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Securities of or within any series, means the place or places where the principal of, premium, if any, and interest on such Securities are payable as specified or contemplated by Sections 3.1 and 9.2. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Principal amount", when used with respect to any Security, means the amount of principal, if any, payable in respect thereof at Maturity; provided, however, that when used with respect to an Indexed Security in any context other than the making of payments at Maturity, "principal amount" means the principal face amount of such Indexed Security at original issuance. 6 12 "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture. "Register" shall have the meaning set forth in Section 3.5. "Registered Security" means any Security issued hereunder and registered as to principal and interest in the Register. "Registrar" shall have the meaning set forth in Section 3.5. "Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose as contemplated by Section 3.1. "Responsible Officer", when used with respect to the Trustee, shall mean any vice president, any assistant vice president, any senior trust officer, any trust officer, or any officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject and who shall have direct responsibility for the administration of this Indenture. "Restricted Subsidiary" means any Subsidiary of the Company which (i) owns or leases a Principal Property and (ii) (A) substantially all of the property of which is located, or substantially all of the business of which is carried on, within the United States of America or (B) which is incorporated or organized under the laws of any state of the United States of America or the District of Columbia. "Secured Debt" shall have the meaning set forth in Section 9.8(a). "Security" or "Securities" has the meaning stated in the first recital of this Indenture and more particularly means a Security or Securities of the Company issued, authenticated and delivered under this Indenture. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or in a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subsidiary" means (i) any corporation, at least a majority of the total voting power of whose outstanding Voting Stock is at the date of determination owned, directly or indirectly, by the Company and/or one or more other Subsidiaries of the Company, and (ii) any Person (other than a corporation) in which the Company and/or one or more other Subsidiaries of the Company own, directly or indirectly, at the date of determination, at least a majority ownership interest. 7 13 "Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect on the date of this Indenture, except as provided in Section 8.3. "Trustee" means the party named as such in the first paragraph of this Indenture until a successor Trustee replaces it pursuant to the applicable provisions of this Indenture, and thereafter means such successor Trustee and if, at any time, there is more than one Trustee, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series. "United States" means, unless otherwise specified with respect to the Securities of any series as contemplated by Section 3.1, the United States of America (including the states thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. "United States Alien", except as otherwise provided with respect to the Securities of any series as contemplated by Section 3.1, means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust. "U.S. Person" means, unless otherwise specified with respect to the Securities of any series as contemplated by Section 3.1, any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States, any estate the income of which is subject to United States federal income taxation regardless of its source, or any trust whose administration is subject to the primary supervision of a United States court and which has one or more United States fiduciaries who have the authority to control all substantial decisions of the trust. "Voting Stock" means, with respect to any corporation, securities of any class or series of such corporation, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors of the corporation. Section 1.2. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, 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, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to Sections 2.3 and 9.7 and the last paragraph of Section 3.3) shall include: (1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto; 8 14 (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.3. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations as to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 1.4. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where 9 15 such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed by any trust company, bank, banker or other depository, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depository, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another such certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a Registered Security or (iv) such Bearer Security is no longer Outstanding. The ownership of Bearer Securities may also be proved in any other manner which the Trustee deems sufficient. (d) The ownership of Registered Securities shall be proved by the Register. (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. (f) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. Section 1.5. Notices, etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by facsimile (with confirmation of receipt), overnight delivery service or mailed, first-class postage prepaid, to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or 10 16 (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by facsimile (with confirmation of receipt), overnight delivery service or mailed, first-class postage prepaid, to the Company addressed to it at Fidelity National Financial, Inc., 17911 Von Karman Avenue, Suite 300, Irvine, California 92614, Attention: Chief Financial Officer or at any other address previously furnished in writing to the Trustee by the Company. Section 1.6. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, (i) if any of the Securities affected by such event are Registered Securities, such notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Registered Security expressly provided) if in writing and sent by overnight delivery service or mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Register, within the time prescribed for the giving of such notice, and (ii) if any of the Securities affected by such event are Bearer Securities, notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Bearer Securities expressly provided) if published once in an Authorized Newspaper in New York, New York, and in such other city or cities, if any, as may be specified as contemplated by Section 3.1. 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 of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. In any case where notice is given to Holders by publication, neither the failure to publish such notice, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice. If by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice as provided above, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. If it is impossible or, in the opinion of the Trustee, impracticable to give any notice by publication in the manner herein required, then such publication in lieu thereof as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice. Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication. 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 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. Section 1.7. Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 1.8. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successor and assigns, whether so expressed or not. 11 17 Section 1.9. Separability. In case any provision of this Indenture or the Securities shall be invalid, illegal or unenforceable, then, to the extent permitted by applicable law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 1.10. Benefits of Indenture. Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Indenture is subject to the Trust Indenture Act and if any provision hereof limits, qualifies or conflicts with the Trust Indenture Act, the Trust Indenture Act shall control. Section 1.12. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal, premium, if any, or interest need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such date; provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be. ARTICLE 2 SECURITY FORMS Section 2.1. Forms Generally. The Securities of each series and the coupons, if any, to be attached thereto shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if any. Unless otherwise provided as contemplated in Section 3.1, Securities will be issued only in registered form without coupons or in the form of one or more global securities. If temporary Securities of any series are issued as permitted by Section 3.4, the form thereof also shall be established as provided in the preceding sentence. If the forms of Securities and coupons, if any, of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution together with an appropriate record (which may be in the form of an Officers' Certificate) of any such action taken pursuant thereto, including a copy of the approved form of Securities or coupons, if any, shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities. 12 18 Unless otherwise specified as contemplated by Section 3.1, Bearer Securities shall have interest coupons attached. The definitive Securities and coupons, if any, 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 and coupons, if any, as evidenced by their execution of such Securities and coupons, if any. Section 2.2. Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication shall be in substantially the following form: This is one of the Securities of the series described in the within-mentioned Indenture. Dated: THE BANK OF NEW YORK as Trustee By ------------------------------------- Authorized Signatory Section 2.3. 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 or specified 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 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 pursuant to Section 3.1 or in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, 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 pursuant to Section 3.1 or in the applicable Company Order. Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel. The provisions of the last paragraph of Section 3.3 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 1.2 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 3.3. Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise specified as contemplated by Section 3.1, payment of principal of, premium, if any, and interest on any Security in permanent global form shall be made to the Person or Persons specified therein. 13 19 Section 2.4. Form of Legend for Securities in Global Form. Any Security in global form authenticated and delivered hereunder shall bear a legend in substantially the following form and such other legends as may be approved by the officers executing such Security, as evidenced by their execution thereof: This Security is in global form within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository. Unless and until it is exchanged in whole or in part for Securities in certificated form, this Security may not be transferred except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository. ARTICLE 3 THE SECURITIES Section 3.1. Amount Unlimited; Issuable in Series. (a) The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued from time to time in one or more series. (b) The following matters shall be established with respect to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in an Officers' Certificate or (iii) in one or more indentures supplemental hereto: (1) the title of the Securities of the series, including CUSIP Numbers (which title shall distinguish the Securities of the series from all other series of Securities); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7 or upon the Company's repurchase of any Securities in part at the option of the Holders thereof); (3) the date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method of determination thereof; (4) the rate or rates (which may be fixed, variable or zero) at which the Securities of the series shall bear interest, if any, or the method of calculating such rate or rates of interest; (5) the date or dates from which interest, if any, shall accrue or the method by which such date or dates shall be determined; (6) the Interest Payment Dates on which any such interest, if any, shall be payable and, with respect to Registered Securities, the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date; 14 20 (7) each Place of Payment for the Securities of the series; (8) the period or periods within which, the price or prices at which, the currency (if other than Dollars) in which, and the other terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than as provided in Section 10.3, the manner in which the particular Securities of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption; (9) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the other terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (10) if other than denominations of $1,000 and any integral multiple thereof, if Registered Securities, and if other than the denomination of $5,000, if Bearer Securities, the denominations in which Securities of the series shall be issuable; (11) if other than Dollars, the currency for which the Securities of the series may be purchased or in which the Securities of the series shall be denominated and/or the currency in which the principal of, premium, if any, and interest, if any, on the Securities of the series shall be payable and the particular provisions applicable thereto in accordance with, in addition to, or in lieu of the provisions of this Indenture; (12) if the amount of payments of principal of, or premium, if any, or interest, if any, on the Securities of the series shall be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable), the index, formula or other method by which such amount shall be determined; (13) if the amount of payments of principal, premium, if any, or interest, if any, on the Securities of the series shall be determined with reference to an index, formula or other method based on the prices of securities or commodities, with reference to changes in the prices of securities or commodities or otherwise by application of a formula, the index, formula or other method by which such amount shall be determined; (14) if other than the entire principal amount thereof, the portion of the principal amount of such Securities of the series which shall be payable upon declaration of acceleration thereof pursuant to Section 5.2 or the method by which such portion shall be determined; (15) if other than as provided in Section 3.7, the Person to whom any interest on any Registered Security of the series shall be payable and the manner in which, or the Person to whom, any interest on any Bearer Securities of the series shall be payable; (16) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified; 15 21 (17) any addition to or modification or deletion of any Events of Default or any covenants of the Company pertaining to the Securities of the series; (18) under what circumstances, if any, the Company will pay Additional Amounts on the Securities of that series held by a Person who is not a U.S. Person in respect of taxes, assessments or similar governmental charges withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option); (19) whether Securities of the series shall be issuable as Registered Securities or Bearer Securities (with or without interest coupons), or both, and any restrictions applicable to the offering, sale or delivery of Bearer Securities and, if other than as provided in Section 3.5, the terms upon which Bearer Securities of a series may be exchanged for Registered Securities of the same series and vice versa; (20) the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued; (21) the forms of the Securities and coupons, if any, of the series; (22) if either or both of Section 4.4 relating to defeasance or Section 4.5 relating to covenant defeasance shall not be applicable to the Securities of such series, or, if such defeasance or covenant defeasance shall be applicable to the Securities of such series, any covenants in addition to those specified in Section 4.5 relating to the Securities of such series which shall be subject to covenant defeasance and any deletions from, or modifications or additions to, the provisions of Article 4 in respect of the Securities of such series or such other means of defeasance or covenant defeasance as may be specified for the Securities of such series; (23) if other than the Trustee, the identity of the Registrar and any Paying Agent; (24) if the Securities of the series shall be issued in whole or in part in global form, (i) the Depository for such global Securities, (ii) whether beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series and of like tenor of any authorized form and denomination, and (iii) if other than as provided in Section 3.5, the circumstances under which any such exchange may occur; and (25) any other terms of the Securities of such series and any deletions from or modifications or additions to this Indenture in respect of such Securities. (c) All Securities of any one series and coupons, if any, appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in the related Officers' Certificate or (iii) in an indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series. 16 22 (d) If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth, or providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication and delivery thereof. Section 3.2. Denominations. Unless otherwise provided as contemplated by Section 3.1, any Registered Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of a series shall be issuable in denominations of $5,000. Section 3.3. Execution, Authentication, Delivery and Dating. Securities shall be executed on behalf of the Company by two Officers. The Company's seal shall be reproduced on the Securities. The signatures of any of these Officers on the Securities may be manual or facsimile. The coupons, if any, of Bearer Securities shall bear the facsimile signature of two Officers. Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time and from time to time, the Company may deliver Securities, together with any coupons appertaining thereto, of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures (including, without limitation, the receipt by the Trustee of oral or electronic instructions from the Company or its duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of a series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, 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 Sections 315(a) through (d) of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel stating, (1) if the forms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 2.1, that such forms have been established in conformity with the provisions of this Indenture; (2) if the terms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 3.1, that such terms have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established in conformity with the provisions of this Indenture, subject in the case of Securities offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and 17 23 (3) that such Securities together with any coupons appertaining thereto, 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 legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles. Notwithstanding that such form or terms have been so established, the Trustee shall have the right to decline to authenticate such Securities if, in the written opinion of counsel to the Trustee (which counsel may be an employee of the Trustee) reasonably acceptable to the Company, the issue of such Securities pursuant to this Indenture will adversely affect the Trustee's own rights, duties or immunities under this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 3.1 and of the two preceding paragraphs, if all of the Securities of any series are not to be issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to the two preceding paragraphs in connection with the authentication of each Security of such series if such documents, with appropriate modifications to cover such future issuances, are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in connection with the first authentication of Securities of such series. If the Company shall establish pursuant to Section 3.1 that the Securities of a series are to be issued in whole or in part in global form, then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Securities in global form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such Security or Securities in global form, (ii) shall be registered, if a Registered Security, in the name of the Depository for such Security or Securities in global form or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or pursuant to such Depository's instruction and (iv) shall bear the legend contemplated by Section 2.4. Each Depository designated pursuant to Section 3.1 for a Registered Security in global form must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Securities Exchange Act of 1934 or any successor thereto (if so required by applicable law or regulation) and any other applicable statute or regulation. The Trustee shall have no responsibility to determine if the Depository is so registered. Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 3.1. 18 24 No Security or coupon appertaining thereto shall be entitled to any benefits under this Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of one of the authorized signatories of the Trustee or an Authenticating Agent and no coupon shall be valid until the Security to which it appertains has been so authenticated. Such signature upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered under this Indenture and is entitled to the benefits of this Indenture. Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and canceled. 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 3.9 together with a written statement (which need not comply with Section 1.2 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 not be entitled to the benefits of this Indenture. Section 3.4. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute and, upon Company Order, the Trustee shall authenticate and deliver temporary Securities of such series which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor and form, with or without coupons, of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities and coupons, if any. In the case of Securities of any series, such temporary Securities may be in global form, representing all or a portion of the Outstanding Securities of such series. Except in the case of temporary Securities in global form, each of which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company pursuant to Section 9.2 in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that no definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security unless the Trustee shall have received from the Person entitled to receive the definitive Bearer Security a certificate substantially in the form approved in or pursuant to the Board Resolutions relating thereto and such delivery shall occur only outside the United States. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series except as otherwise specified as contemplated by Section 3.1. Section 3.5. Registration, Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency to be maintained by the Company in accordance with Section 9.2 in a Place of Payment a register (the "Register") in which, 19 25 subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities. The Register shall be in written form or any other form capable of being converted into written form within a reasonable time. The Trustee is hereby appointed "Registrar" for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. Upon surrender for registration of transfer of any Registered Security of any series at the office or agency maintained pursuant to Section 9.2 in a Place of Payment for that 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 Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount containing identical terms and provisions. Bearer Securities or any coupons appertaining thereto shall be transferable by delivery. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount containing identical terms and provisions, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may not be issued in exchange for Registered Securities. Unless otherwise specified as contemplated by Section 3.1, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities (if the Securities of such series are issuable in registered form) or Bearer Securities (if Bearer Securities of such series are issuable in more than one denomination and such exchanges are permitted by such series) of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 9.2, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case any Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so 20 26 surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon, when due in accordance with the provisions of this Indenture. Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive certificated form, a Security in global form representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depository for such series to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor Depository for such series or a nominee of such successor Depository. Unless otherwise specified pursuant to Section 3.1 with respect to the Securities of any series, a Security in global form will be exchangeable for certificated Securities of the same series in definitive form only if (i) the Depository for the Global Securities of such series notifies the Company that it is unwilling or unable to continue as Depository for the global Securities of such series or such Depository ceases to be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, or any successor thereto if so required by applicable law or regulation and, in either case, a successor Depository for such Securities shall not have been appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, as the case may be, (ii) the Company, in its sole discretion, determines that such Securities in global form shall be exchangeable for certificated Securities and executes and delivers to the Trustee a Company Order to the effect that such global Securities shall be so exchangeable, or (iii) there shall have occurred and be continuing an Event of Default with respect to the Securities of such series, the Company's election pursuant to Section 3.1(b)(24) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of certificated Securities of such series of like tenor and terms, shall authenticate and deliver, without charge, Securities of such series of like tenor and terms in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor and terms in global form in exchange for such Security or Securities in global form. Upon any such exchange, owners of beneficial interests in such Securities in global form will be entitled to physical delivery of individual Securities in certificated form of like tenor and terms equal in principal amount to such beneficial interests, and to have such Securities in certificated form registered in the names of the beneficial owners. If specified by the Company pursuant to Section 3.1 with respect to a series of Securities, the Depository for such series may surrender a Security in global form of such series in exchange in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depository. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by such Depository a new certificated Security or Securities of the same series of like tenor and terms, of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Security in global form; and (ii) to such Depository a new Security in global form of like tenor and terms in a denomination equal to the difference, if any, between the principal amount 21 27 of the surrendered Security in global form and the aggregate principal amount of certificated Securities delivered to Holders thereof. Upon the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be canceled by the Trustee. Unless expressly provided with respect to the Securities of any series that such Security may be exchanged for Bearer Securities, Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depository for such Security in global form, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered. Whenever any Securities are surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities issued upon any registration of transfer or upon any exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or for any exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration or transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 8.6, or 10.7 or upon the Company's repurchase of any Securities in part at the option of the Holder thereof not involving any transfer. The Company shall not be required (i) to issue, register the transfer of, or exchange any Securities for a period beginning at the opening of business 15 days before any selection for redemption of Securities of like tenor and of the series of which such Security is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities of like tenor and of such series to be redeemed; (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part; or (iii) to exchange any Bearer Security so selected for redemption, except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption. Section 3.6. Replacement Securities. If a mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, together with, in proper cases, such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver a replacement Registered Security, if such surrendered Security was a Registered Security, or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the 22 28 surrendered Security, if such surrendered Security was a Bearer Security, of the same series, terms and date of maturity, if the Trustee's requirements are met. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Security with a destroyed, lost or stolen coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a replacement Registered Security, if such Holder's claim appertains to a Registered Security, or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the destroyed, lost or stolen Bearer Security or the Bearer Security to which such lost, destroyed or stolen coupon appertains, if such Holder's claim appertains to a Bearer Security, of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to the destroyed, lost or stolen Security. In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security or coupon, pay such Security or coupon; provided, however, that payment of principal of and any premium or interest on Bearer Securities shall, except as otherwise provided in Section 9.2, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 3.1, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and its coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons. Section 3.7. Payment of Interest; Interest Rights Preserved. (a) Unless otherwise provided as contemplated by Section 3.1, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the 23 29 office or agency maintained for such purpose pursuant to 9.2; provided, however, that at the option of the Company, interest on any series of Registered Securities that bear interest may be paid (i) by check mailed to the address of the Persons entitled thereto as they shall appear on the Register of Holders of Securities of such series or (ii) by transfer to an account maintained by the Persons entitled thereto. Unless otherwise provided as contemplated by Section 3.1 and except as otherwise provided in Section 9.2, (i) interest, if any, on Bearer Securities shall be paid only against presentation and surrender of the coupons for such interest installments as are evidenced thereby as they mature and (ii) original issue discount, if any, on Bearer Securities shall be paid only against presentation and surrender of such Securities, in either case at the office of a Paying Agent located outside the United States, unless the Company shall have otherwise instructed the Trustee in writing, provided that any such instruction for payment in the United States does not cause any Bearer Security to be treated as a "registration-required obligation" under United States laws and regulations. The interest, if any, on any temporary Bearer Security shall be paid, as to any installment of interest evidenced by a coupon attached thereto only upon presentation and surrender of such coupon and, as to other installments of interest, only upon presentation of such Security for notation thereon of the payment of such interest. (b) Unless otherwise provided as contemplated by Section 3.1, any interest on Registered Securities of any series which is payable, but is not punctually paid or duly provided for, on any interest payment date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holders on the relevant Regular Record Date by virtue of their having been such Holders, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of such Defaulted Interest to the Persons in whose names such Registered 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 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 (1) provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of such Registered Securities at his address as it appears in the 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 so mailed, such Defaulted Interest shall be paid to the Persons in whose names such Registered Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of such Defaulted Interest to the Persons in whose names such Registered Securities (or their respective Predecessor Securities) are registered at the close of business on a specified date in any other lawful manner not inconsistent 24 30 with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (2), such manner of payment shall be deemed practicable by the Trustee. (c) Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. Section 3.8. Persons Deemed Owners. Prior to due presentment of any Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 3.7) interest on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, with respect to any Security in global form, nothing herein shall prevent the Company or the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depository (or its nominee), as a Holder, with respect to such Security in global form or impair, as between such Depository and owners of beneficial interests in such Security in global form, the operation of customary practices governing the exercise of the rights of such Depository (or its nominee) as Holder of such Security in global form. Section 3.9. Cancellation. The Company at any time may deliver Securities and coupons to the Trustee for cancellation. The Registrar and any Paying Agent shall forward to the Trustee any Securities and coupons surrendered to them for replacement, for registration of transfer, or for exchange or payment. The Trustee shall cancel all Securities and coupons surrendered for replacement, for registration of transfer, or for exchange, payment, redemption or cancellation and shall dispose of such canceled Securities in its customary manner. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation. Section 3.10. Computation of Interest. Except as otherwise specified as contemplated by Section 3.1, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. 25 31 Section 3.11. CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, in such case, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other 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 shall promptly advise the Trustee of any change in the CUSIP Numbers. Section 3.12. Currency of Payment in Respect of Securities. Unless otherwise specified with respect to any Securities pursuant to Section 3.1, payment of the principal of, premium, if any, and interest, if any, on any Registered or Bearer Security of such series will be made in Dollars. ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE Section 4.1. Termination of Company's Obligations Under the Indenture. This Indenture shall upon a Company Request cease to be of further effect with respect to Securities of any series and any coupons appertaining thereto (except as specified below) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities and any coupons appertaining thereto when (1) either (A) all such Securities previously authenticated and delivered and all coupons appertaining thereto (other than (i) such coupons appertaining to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required or has been waived as provided in Section 3.5, (ii) such Securities and coupons which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6, (iii) such coupons appertaining to Bearer Securities called for redemption and maturing after the relevant Redemption Date, surrender of which has been waived as provided in Section 10.6 and (iv) such Securities and coupons for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 9.3) have been delivered to the Trustee for cancellation; or (B) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, 26 32 and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount in the currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee for cancellation, in respect of principal, premium, if any, and interest, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of any series, the obligation of the Company to the Trustee and any predecessor Trustee under Section 6.9, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Company and the Trustee with respect to the Securities of such series under Sections 3.4, 3.5, 3.6, 4.2, 9.2 and 9.3 and with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 3.1(b)(18) shall survive such satisfaction and discharge. Section 4.2. Application of Trust Funds. Subject to the provisions of the last paragraph of Section 9.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto as specifically provided herein, of the principal, premium, if any, and interest for whose payment such money has been deposited with or received by the Trustee, but such money need not be segregated from other funds except to the extent required by law. Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 3.1 either or both of (i) defeasance of the Securities of or within a series under Section 4.4 or (ii) covenant defeasance of the Securities of or within a series under Section 4.5 shall not be applicable with respect to the Securities of any series, then the provisions of such Section or Sections, as the case may be, together with the provisions of Sections 4.6 through 4.10 inclusive, with such modifications thereto as may be specified pursuant to Section 3.1 with respect to such Securities, shall be applicable to such Securities and any coupons appertaining thereto, and the Company may at its option by Board Resolution, at any time, with respect to such Securities and any coupons appertaining thereto, elect to have Section 4.4 or Section 4.5 (unless such Section 4.4 or Section 4.5, as the case may be, shall not be applicable to the Securities of such series) be applied to such Outstanding Securities and any coupons appertaining thereto upon compliance with the conditions set forth below in this Article. Unless otherwise specified pursuant to Section 3.1, the Company's right, if any, to effect defeasance pursuant to Section 4.4 or covenant defeasance pursuant to Section 4.5 may only be exercised with respect to all of the Outstanding Securities of a series and any coupons appertaining thereto. 27 33 Section 4.4. Defeasance. Upon the Company's exercise of the option specified in Section 4.3 applicable to this Section with respect to the Securities of a series, the Company shall be deemed to have been discharged from its obligations with respect to such Securities and any coupons appertaining thereto (except as specified below) on the date the conditions set forth in Section 4.6 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and any coupons appertaining thereto which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 4.7 and the other Sections of this Indenture referred to in clause (ii) of this Section, and to have satisfied all its other obligations under such Securities and any coupons appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall on Company Order execute proper instruments acknowledging the same), except the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Securities and any coupons appertaining thereto to receive, solely from the trust funds described in Section 4.6(a) and as more fully set forth in such Section and in Section 4.7, payments in respect of the principal of, premium, if any, and interest, if any, on such Securities and any coupons appertaining thereto when such payments are due; (ii) the Company's obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of Additional Amounts, if any, payable with respect to such Securities as specified pursuant to Section 3.1(b)(18); (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Article 4. Subject to compliance with this Article 4, the Company may exercise its option under this Section notwithstanding the prior exercise of its option under Section 4.5 with respect to such Securities and any coupons appertaining thereto. Following a defeasance, payment of such Securities may not be accelerated because of an Event of Default. Section 4.5. Covenant Defeasance. Upon the Company's exercise of the option specified in Section 4.3 applicable to this Section with respect to any Securities of a series, the Company shall be released from its obligations under Sections 7.1, 9.4 (other than the Company's obligation to maintain its corporate existence), 9.5, 9.8, 9.9 and 9.10 and, if specified pursuant to Section 3.1, its obligations under any other covenant, with respect to such Securities and any coupons appertaining thereto on and after the date the conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant defeasance"), and such Securities and any coupons appertaining thereto shall thereafter be deemed to be not "Outstanding" for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 7.1, 9.4 (other than the Company's obligation to maintain its corporate existence), 9.5, 9.8, 9.9 and 9.10 and any such other covenant, but shall continue to be deemed "Outstanding" for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Securities and any coupons appertaining thereto, the Company 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 a Default or an Event of Default under Section 5.1(3) or 5.1(7) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby. Section 4.6. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 4.4 or Section 4.5 to any Securities of or within a series and any coupons appertaining thereto: 28 34 (a) The Company shall have irrevocably deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.12 who shall agree in writing to comply with, and shall be entitled to the benefits of, the provisions of Sections 4.3 through 4.10 inclusive and the last paragraph of Section 9.3 applicable to the Trustee, for purposes of such Sections also a "Trustee") as trust funds in trust for the purpose of making the payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any coupons appertaining thereto, with instructions to the Trustee as to the application thereof, (A) money in an amount (in such currency in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with Section 4.6(g) below, on the relevant Redemption Date, as the case may be), or (B) if Securities of such series are not subject to repayment or repurchase at the option of Holders, Government Obligations applicable to such Securities and any coupons appertaining thereto (determined on the basis of the currency in which such Securities and coupons, if any, are then specified as payable at Stated Maturity or the applicable Redemption Date, as the case may be) which through the payment of interest and principal in respect thereof in accordance with their terms will provide (without consideration of any reinvestment of such principal and interest), not later than one day before the due date of any payment referred to in clause (x) or (y) of this Section 4.6(a), money in an amount or (C) a combination thereof in an amount, sufficient, in the opinion of any of the firms of independent certified public accountants listed in the last sentence of this clause (a), expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, (x) the principal of, and premium, if any, and interest, if any, on such Securities and any coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest or on the applicable Redemption Date, as the case may be, and (y) any mandatory sinking fund payments applicable to such Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and such Securities and any coupons appertaining thereto. Any of Arthur Andersen, Deloitte & Touche, Ernst & Young, KPMG or PricewaterhouseCoopers shall issue the opinion and written certification called for above. (b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default or Event of Default under, this Indenture or result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Company is a party or by which it is bound. (c) In the case of an election under Section 4.4, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of 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 Securities and any coupons appertaining thereto 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. (d) In the case of an election under Section 4.5, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities and any coupons appertaining thereto 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. 29 35 (e) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance under Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be) have been complied with. (f) No Event of Default or Default with respect to such Securities or any coupons appertaining thereto shall have occurred and be continuing on the date of such deposit, or, insofar as Defaults in Events of Default under Sections 5.1(5) and 5.1(6) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). (g) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 4.6(a) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on such Securities and coupons, if any, appertaining thereto provided such Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture. (h) Such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith as contemplated by Section 3.1. Section 4.7. Deposited Money and Government Obligations to Be Held in Trust. Subject to the provisions of the last paragraph of Section 9.3, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.6 in respect of any Securities of any series and any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining thereto of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required by law. Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 4.6(a) 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 4.6(a) 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 4.6(a) has been made, the indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of and premium, if any, and interest, if any, on 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 monies or Government Obligations (or other property and any proceeds therefrom) 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 Foreign Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market 30 36 exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. Section 4.8. Repayment to Company. Anything in this Article 4 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 4.6(a) with respect to the Securities of any series which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, of such Securities in accordance with Section 4.6. Section 4.9. Indemnity for Government Obligations. The Company shall pay, and shall indemnify the Trustee against, any tax, fee or other charge imposed on or assessed against Government Obligations deposited pursuant to this Article or the principal and interest received on such Government Obligations. Section 4.10. Reinstatement. If the Trustee or any Paying Agent is unable to apply any monies or Government Obligations (or other property or any proceeds therefrom) deposited pursuant to Section 4.6(a) in accordance with this Indenture or the Securities of the applicable series 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, then the Company's obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.6(a) until such time as the Trustee or a Paying Agent is permitted to apply such monies or Government Obligations (or other property or any proceeds therefrom) in accordance with this Indenture and the Securities of such series; provided, however, that if the Company makes any payment of principal of, premium, if any, or interest on any Security of such series following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the cash and Government Obligations(or other property or any proceeds therefrom) held by the Trustee or Paying Agent. ARTICLE 5 DEFAULTS AND REMEDIES Section 5.1. Events of Default. "Event of Default", wherever used herein with respect to Securities of any series, means any of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officers' Certificate establishing the terms of such series pursuant to Section 3.1 of this Indenture: (1) default in the payment of any interest on any Security of that series or any coupon appertaining thereto, or any Additional Amounts payable with respect to any Security of that series, when the same becomes due and payable and continuance of such default for a period of 30 days; or 31 37 (2) default in the payment of any principal of or premium, if any, on any Security of that series when the same becomes due and payable at its Maturity (whether at Stated Maturity, upon redemption, repurchase at the option of the Holder or otherwise), or default in the making of any mandatory sinking fund payment in respect of any Securities of that series when and as due by the terms of the Securities of that series; or (3) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture or any Security of such series (other than a covenant or warranty for which the consequences of breach or nonperformance are addressed elsewhere in this Section 5.1 or a covenant or warranty which has expressly been included in this Indenture, whether or not by means of a supplemental indenture, solely for the benefit of Securities of a series other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (4) default under any bond, note, debenture or other evidence of Debt of the Company (including an event of default with respect to any other series of Securities), or under any mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any Debt of the Company, whether such Debt exists on the date of this Indenture or shall hereafter be incurred or created, which results in such Debt in an aggregate principal amount exceeding $20,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, and such acceleration shall not be rescinded or annulled or such Debt shall not be paid in full, or there has not been deposited into trust a sum of money sufficient to pay in full such Debt, within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series a written notice specifying such default and requiring the Company to cause such acceleration to be rescinded or annulled or to pay in full such Debt or to deposit into trust a sum of money sufficient to pay in full such Debt and stating that such notice is a "Notice of Default" hereunder; or (5) the Company pursuant to or within the meaning of any Bankruptcy Law (A) commences a voluntary case or proceeding, (B) consents to the entry of an order for relief against it in an involuntary case or proceeding or to the commencement of any bankruptcy or insolvency case or proceeding against it, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property; or (D) makes a general assignment for the benefit of its creditors; or (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, (C) orders the winding up or liquidation of the Company , (D) adjudges the Company a bankrupt or insolvent or (E) approves as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect to the Company; and any such order or decree described in this clause (6) remains unstayed and in effect for 60 days; or 32 38 (7) any other Event of Default provided as contemplated by Section 3.1 with respect to Securities of that series. The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. Section 5.2. Acceleration; Rescission and Annulment. If an Event of Default with respect to the Securities of any series at the time Outstanding occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of all of the Outstanding Securities of such series, by written notice to the Company (and, if given by the Holders, to the Trustee), may declare the principal of (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) and accrued interest, if any, on all the Securities of that series to be due and payable and upon any such declaration such principal (or, in the case of Original Issue Discount Securities or Indexed Securities, such specified amount) and interest, if any, shall be immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with the Trustee a sum of money sufficient to pay (i) all overdue installments of interest on any Securities of such series and any coupons appertaining thereto which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto, (ii) the principal of and any premium on any Securities of such series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and, to the extent permitted by applicable law, interest thereon at the rate or rates borne by or provided for in such Securities, (iii) to the extent permitted by applicable law, interest upon installments of interest, if any, which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto at the rate or rates borne by or provided for in such Securities, and (iv) all sums paid or advanced by the Trustee hereunder and the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.9; and (2) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of, and interest on, and any Additional Amounts with respect to, Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 5.7. 33 39 No such rescission shall affect any subsequent default or impair any right consequent thereon. Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any interest on any Security or coupon, if any, or any Additional Amounts with respect to any Security when the same becomes due and payable and such default continues for a period of 30 days; or (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities or coupons, if any, the whole amount then due and payable on such Securities for principal, premium, if any, interest and Additional Amounts, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal, premium, if any, interest and Additional Amounts, if any, at the rate or rates borne by or prescribed therefor in such Securities or coupons, if any, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Securities and any coupons appertaining thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities and any coupons appertaining thereto, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to secure any other proper remedy. Section 5.4. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of such Securities and any coupons appertaining 34 40 thereto and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities or any coupons allowed in such judicial proceeding, and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any Custodian in any such judicial proceeding is hereby authorized by each Holder of Securities or any coupons to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities or any coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 6.9. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or any coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or any coupon in any such proceeding. Section 5.5. Trustee May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claims under this Indenture or any of the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Security or coupon in respect of which such judgment has been recovered. Section 5.6. Delay or Omission Not Waiver. No delay or omission by the Trustee or any Holder of any Securities to exercise any right or remedy accruing upon an Event of Default shall, to the extent permitted by applicable law, impair any such right or remedy or constitute a waiver of or acquiescence in any such Event of Default. Every right and remedy given by this Article 5 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustees or by the Holders of Securities or coupons, as the case may be. Section 5.7. Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series by written notice to the Trustee may waive on behalf of the Holders of all Securities of such series any past Default or Event of Default with respect to that series and its consequences except (i) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest on, or Additional Amounts, if any, with respect to, any Security of such series or any coupon appertaining thereto or (ii) in respect of a covenant or provision hereof which pursuant to Section 8.2 cannot be amended or modified without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture. Section 5.8. Control by Majority. The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and 35 41 place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it with respect to Securities of that series; provided, however, that (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, (ii) the Trustee may refuse to follow any direction that is unduly prejudicial to the rights of the Holders of Securities of such series not consenting or that would in the good faith judgment of the Trustee have a substantial likelihood of involving the Trustee in personal liability and (iii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Section 5.9. Limitation on Suits by Holders. No Holder of any Security of any series or any coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (1) the Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series; (2) the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series have made a written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense to be, or which may be, incurred by the Trustee in pursuing the remedy; (4) the Trustee for 60 days after its receipt of such notice, request and the offer of indemnity has failed to institute any such proceedings; and (5) during such 60 day period, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series have not given to the Trustee a direction inconsistent with such written request. No one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. Section 5.10. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of, and premium, if any, and, subject to Sections 3.5 and 3.7, interest on, and Additional Amounts, if any, with respect to, such Security and such coupon on the respective due dates expressed in such Security or coupon (or, in case of redemption, on the Redemption Date or, in the case of repurchase by the Company at the option of such Holder, on any date such repurchase is due to be made), and to institute suit for the enforcement of any such payment, and such right, shall not be impaired or affected without the consent of such Holder. Section 5.11. Application of Money Collected. If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or 36 42 interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: to the Trustee for amounts due under Section 6.9; SECOND: to Holders of Securities and coupons in respect of which or for the benefit of which such money has been collected for amounts due and unpaid on such Securities for principal, premium, if any, interest and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, interest and Additional Amounts, if any, respectively; and THIRD: to the Company. The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.11. At least 15 days before such record date, the Trustee shall mail to each holder and the Company a notice that states the record date, the payment date and the amount to be paid. Section 5.12. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 5.13. Rights and Remedies Cumulative. To the extent permitted by applicable law and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 5.14. Waiver of Stay or Extension Laws. The Company covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this indenture; and the Company expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law and covenants (to the extent it may lawfully do so) that it will not hinder, delay or impede the execution of any power herein granted to the trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. Section 5.15. Undertaking for Costs. All parties to this indenture agree, and each holder of any security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this indenture, or in any suit against the trustee for any action taken or omitted by it as trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its 37 43 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 5.15 shall not apply to any suit instituted by the trustee, to any suit instituted by any holder, or group of holders, holding in the aggregate more than 10% in principal amount of outstanding securities of any series, or to any suit instituted by any holder for the enforcement of the payment of the principal of, or premium, if any, or interest, if any, on or additional amounts, if any, with respect to any security on or after the respective stated maturities expressed in such security (or, in the case of redemption, on or after the redemption date, or, in the case of repurchase by the company at the option of the holder, on or after the date for repurchase). ARTICLE 6 THE TRUSTEE Section 6.1. Certain Duties and Responsibilities of the Trustee. (a) Except during the continuance of an Event of Default, the Trustee's duties and responsibilities under this Indenture shall be governed by Section 315(a) of the Trust Indenture Act and no implied duties shall be inferred against the Trustee. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Section 6.2. Rights of Trustee. Subject to the provisions of the Trust Indenture Act: (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee need not investigate any fact or matter stated in the document but the Trustee may, in its discretion, 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 expense of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry. (b) Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 3.3, which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution. (c) Before the Trustee acts or refrains from acting, it may consult with counsel of its own selection (who may be in-house counsel) or require an Officers' Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on a Board Resolution, the written advice of counsel, who may be an attorney for the Company, an Officers' Certificate or an Opinion of Counsel. 38 44 (d) The Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care. (e) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (f) The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers. (g) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein. (h) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith and without negligence in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. (i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. (j) The Trustee's rights to immunities and protection from liability hereunder and its rights to payment of its fees and expenses shall survive termination of this Agreement and its resignation or removal. (k) 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, custodian and other Person employed to act hereunder. Section 6.3. Trustee May Hold Securities. The Trustee, any Paying Agent, any Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company and an Affiliate or Subsidiary of the Company with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent. Section 6.4. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed upon in writing with the Company. Section 6.5. Trustee's Disclaimer. The recitals contained herein and in the Securities, except the Trustee's certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity, adequacy or priority of this Indenture or the Securities or any coupon. The Trustee 39 45 shall not be accountable for the Company's use of the proceeds from the Securities or for monies paid over to the Company pursuant to the Indenture. Section 6.6. Notice of Defaults. If a Default occurs and is continuing with respect to the Securities of any series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall, within 90 days after it occurs, transmit by mail, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all Defaults known to it unless such Default shall have been cured or waived; provided, however, that in the case of a Default in payment on the Securities of any series, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding such notice is in the interests of Holders of Securities of that series; and provided, further, that in the case of any Default of the character specified in Section 5.1(3) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. The Trustee shall not be deemed to have notice of a Default or an Event of Default unless (i) the Trustee has received written notice thereof from the Company or any Holder or (ii) a Responsible Officer of the Trustee shall have actual knowledge thereof as evidenced in writing. Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein, or of any of the documents executed in connection with the Securities, or as to the existence of a Default or an Event of Default thereunder. Section 6.7. Reports by Trustee to Holders. Within 60 days after each November 15 of each year commencing with the first November 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in Section 313(c) of the Trust Indenture Act a brief report dated as of such November 15 if required by and in compliance with Section 313(a) of the Trust Indenture Act. Section 6.8. Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Securities of each series. If the Trustee is not the Registrar, the Company shall furnish to the Trustee semiannually on or before the last day of June and December in each year, and at such other times as the Trustee may request in writing, a list, in such form and as of such date as the Trustee may reasonably require, containing all the information in the possession or control of the Registrar, the Company or any of its Paying Agents other than the Trustee as to the names and addresses of Holders of Securities of each such series. If there are Bearer Securities of any series outstanding, even if the Trustee is the Registrar, the Company shall furnish to the Trustee such a list containing such information with respect to Holders of such Bearer Securities only. Section 6.9. Compensation and Indemnity. (a) The Company shall pay to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all out-of-pocket expenses incurred by it in connection with the performance of its duties under this Indenture, except any such expense as shall be determined to have been caused by its own negligence or willful misconduct. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. 40 46 (b) The Company shall fully indemnify the Trustee for, and hold it harmless against, any and all loss or liability, damage, claim or expense including taxes (other than taxes based upon or determined or measured by the income of the Trustee) incurred by it arising out of or in connection with its acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. (c) The Company need not reimburse any expense or indemnify against any loss or liability determined by a court of competent jurisdiction to have been caused by the Trustee through its own negligence or willful misconduct. (d) To secure the payment obligations of the Company pursuant to this Section, the Trustee shall have a lien prior to the Securities of any series on all money or property held or collected by the Trustee, in its capacity as Trustee, except that held in trust to pay principal, premium, if any, and interest on and Additional Amounts, if any, with respect to particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(5) or Section 5.1(6), 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. The provisions of this Section shall survive the termination of this Indenture and the registration or removal of the Trustee. All indemnifications and releases from liability granted in this Article 6 to the Trustee shall extend to its directors, officers, employees and agents and to the Trustee and to each Paying Agent and Registrar. Whether or not expressly provided for herein, every provision of this Indenture relating to the conduct or affecting the liability of the Trustee shall be subject to the provision of this Article 6. Section 6.10. Replacement of Trustee. (a) The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in Section 6.11. (b) The Trustee may resign at any time with respect to the Securities of any series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (c) The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may remove the Trustee with respect to that series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the Company's consent. 41 47 If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (d) If at any time: (1) the Trustee fails to comply with Section 310(b) of the Trust Indenture Act after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months; or (3) the Trustee becomes incapable of acting, is adjudged a bankrupt or an insolvent or a receiver or public officer takes charge of the Trustee or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by or pursuant to a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. (e) if the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, with respect to Securities of one or more series, the Company, by or pursuant to Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. Section 6.11. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment. Thereupon, the resignation or 42 48 removal of the retiring Trustee shall become effective, and the successor Trustee, without further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under the Trust Indenture Act. (e) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the Holders of Securities in Section 1.6. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust office. Section 6.12. Eligibility; Disqualification. There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital and surplus of at 43 49 least $50,000,000 (or, in the case of a Trustee which is a subsidiary of a bank holding company, which Trustee shall have a combined capital and surplus of at least $10,000,000 and whose ultimate parent bank holding company shall have a combined capital and surplus of at least $50,000,000). If such corporation (or ultimate parent bank holding company, as the case may be) publishes reports of condition at least annually, pursuant to law or the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation (or ultimate parent bank holding company, as the case may be) shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 6.13. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. Section 6.14. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue, exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and, except as may otherwise be provided pursuant to Section 3.1, shall at all times be a bank or trust company or corporation organized and doing business and in good standing under the laws of the United States of America or of any state or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authorities. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to 44 50 the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent for any series of Securities may at any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 1.6. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this Section. If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee's certificate of authentication, an alternate certificate of authentication substantially in the following form: This is one of the Securities of the series described in the within-mentioned Indenture. ---------------------------------------- Trustee By ------------------------------------- as Authenticating Agent By ------------------------------------- Authorized Signatory Dated: --------------------------------- ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY Section 7.1. Consolidation, Merger or Sale of Assets Permitted. The Company shall not consolidate or merge with or into, or sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its assets to, any Person unless: (1) the Person formed by or surviving any such consolidation or merger (if other than the Company), or which acquires the Company's assets, is a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia; 45 51 (2) the Person formed by or surviving any such consolidation or merger (if other than the Company), or which acquires the Company's assets, expressly assumes by supplemental indenture all the obligations of the Company under the Securities and this Indenture; and (3) immediately after giving effect to the transaction no Default or Event of Default shall have occurred and be continuing. The Company shall deliver to the Trustee prior to the proposed transaction an Officers' Certificate and an Opinion of Counsel each stating that the proposed transaction and such supplemental indenture comply with this Indenture and that all conditions precedent to the consummation of the transaction under this Indenture have been met. Section 7.2. Successor Person Substituted for Company. Upon any consolidation by the Company with or merger of the Company into any other Person or any sale, conveyance, assignment, transfer, lease or other disposition of all or substantially all of the assets of the Company to any Person in accordance with Section 7.1, the successor Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, assignment, transfer, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be released from all obligations and covenants under this Indenture, the Securities and the coupons. ARTICLE 8 SUPPLEMENTAL INDENTURES Section 8.1. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or (3) to add any additional Events of Default with respect to all or any series of Securities; or (4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to facilitate the issuance of Bearer Securities (including, without limitation, to provide that Bearer Securities may be registrable as to principal only) or to facilitate the issuance of Securities in global form; or 46 52 (5) to amend or supplement any provision contained herein or in any supplemental indenture (which amendment or supplement may apply to one or more series of Securities or to one or more Securities within any series as specified in such supplemental indenture), provided that such amendment or supplement does not apply to any Outstanding Security issued prior to the date of such supplemental indenture and entitled to the benefits of such provision; or (6) to secure the Securities; or (7) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or (9) if allowed without penalty under applicable laws and regulations, to permit payment in the United States of principal, premium, if any, or interest, if any, on Bearer Securities or coupons, if any; or (10) to cure any ambiguity or correct any mistake or to correct or supplement any provision herein which may be inconsistent with any other provision herein or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of any Holder of Securities of any series; or (11) to make any change to comply with the Trust Indenture Act of 1939 or any amendment thereof, or any requirement of the Securities and Exchange Commission in connection with the qualification of this Indenture under the Trust Indenture Act of 1939 or any amendment thereof. Section 8.2. Supplemental Indentures With Consent of Holders. With the written consent of the Holders of a majority of the aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company (when authorized by or pursuant to a Board Resolution) and the Trustee may enter into an indenture or indentures supplemental hereto to add any provisions to or to change or eliminate any provisions of this Indenture or of any other indenture supplemental hereto or to modify the rights of the Holders of such Securities; provided, however, that without the consent of the Holder of each Outstanding Security affected thereby, an amendment under this Section may not: (1) change the Stated Maturity of the principal of or premium, if any, on or of any installment of principal of or premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to, any Security, or reduce the principal amount of, or any installment of principal of, or premium, if any, or interest, if any, on, or any Additional Amounts payable with respect to, any Security or the rate of interest on any Security, or reduce the amount of premium, if any, payable upon redemption of any Security or the repurchase by the Company of any Security at the option of the Holder thereof, or change the manner in which the amount of any principal thereof or premium, if any, or interest thereon or Additional Amounts, if any, with respect thereto is determined, or reduce the amount of the principal of any Original Issue Discount Security or Indexed 47 53 Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change the currency in which any Securities or any premium or the interest thereon or Additional Amounts, if any, with respect thereto, is payable, or change the index, securities or commodities with reference to which or the formula by which the amount of principal or any premium or the interest thereon is determined, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repurchase by the Company at the option of the Holder, on or after the date for repurchase); (2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; (3) change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 9.2; or (4) make any change in Section 5.7 or this 8.2 except to increase any percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holders of each Outstanding Security affected thereby. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It is not necessary under this Section 8.2 for the Holders to consent to the particular form of any proposed supplemental indenture, but it is sufficient if they consent to the substance thereof. Section 8.3. Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more series shall be set forth in a supplemental indenture that complies with the Trust Indenture Act as then in effect. Section 8.4. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Section 8.5. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound thereby. 48 54 Section 8.6. Reference in Securities to Supplemental Indentures. Securities, including any coupons, of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities including any coupons of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities including any coupons of such series. ARTICLE 9 COVENANTS Section 9.1. Payment of Principal, Premium, if any, and Interest. The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of, and premium, if any, and interest on, and Additional Amounts, if any, with respect to, the Securities of that series in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture. An installment of principal, premium, if any, interest or Additional Amounts, if any, shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay the installment. Section 9.2. Maintenance of Office or Agency. If Securities of a series are issued as Registered Securities, the Company will maintain in each Place of Payment for such series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain, (i) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for that series which is located outside the United States where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (ii) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for that series which is located outside the United States, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. Unless otherwise specified as contemplated by Section 3.1, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States, by check mailed to any address in the United States, by transfer to an account located in the United States or upon presentation or surrender in the United States of a Bearer Security or coupon for payment, even if the payment would be credited to an account located outside the United 49 55 States; provided, however, that, if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium or interest on any such Bearer Security shall be made at the office of the Company's Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions. The Company may also from time to time designate one or more other offices or agencies where the Securities (including any coupons, if any) of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities (including any coupons, if any) of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise provided in or pursuant to this Indenture, the Company hereby designates the Borough of Manhattan, The City of New York, as the Place of Payment for each series of Securities and initially appoints the Trustee, at its offices which on the date of this Indenture are located at The Bank of New York, 101 Barclay Street, Floor 21W, New York, New York 10286, as the Company's agency in the Borough of Manhattan, The City of New York for the foregoing purposes and as Registrar and Paying Agent. The Company may subsequently appoint a different office or agency in the Borough of Manhattan, The City of New York and a different Registrar and Paying Agent for the Securities of any series. Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of, or premium, if any, or interest on, or Additional Amounts, if any, with respect to, any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of, premium, if any, or interest on or Additional Amounts, if any, with respect to the Securities of that 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 herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal, premium, if any, or interest on the Securities; and 50 56 (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 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 direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of any principal, premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security and coupon, if any, shall thereafter, as an unsecured general creditor, look only to the Company 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 at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, or cause to be mailed to such Holder, 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, any unclaimed balance of such money then remaining will be repaid to the Company. Section 9.4. Corporate Existence. Except as provided in Article 7, the Company will at all times do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and its rights and franchises; provided that nothing in this Section 9.4 shall prevent the abandonment or termination of any right or franchise of the Company if, in the opinion of the Company, such abandonment or termination is in the best interests of the Company and not prejudicial in any material respect to the Holders of the Securities. Section 9.5. Insurance. The Company covenants and agrees that it will maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as are consistent with sound business practice for corporations engaged in the same or similar business similarly situated. In lieu of the foregoing or in combination therewith, in case of itself or of any one or more of its Subsidiaries, the Company will maintain or cause to be maintained a system or systems of self-insurance which will accord with the financially sound and approved practices of companies owning or operating properties of a similar character and maintaining such systems. Section 9.6. Reports by the Company. The Company covenants: (a) to file with the Trustee, within 30 days after the Company 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 Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as 51 57 amended; or, if the Company 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 rules and regulations 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 Securities Exchange Act of 1934, as amended, 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 the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture, as may be required from time to time by such rules and regulations; and (c) to transmit to all Holders of Securities, within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 9.6, as may be required by the 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, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). Section 9.7. Annual Review Certificate; Notice of Defaults or Events of Default. (a) The Company covenants and agrees to deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company's compliance with all conditions and covenants under this Indenture. For purposes of this Section 9.7, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. (b) The Company covenants and agrees to deliver to the Trustee, promptly after the Company becomes aware of the occurrence of a Default or an Event of Default of the character specified in Section 5.1(4) hereof, written notice of the occurrence of such Default or Event of Default. Section 9.8. Limitation on Liens. (a) The Company will not, and will not permit any Subsidiary to, incur, assume or guarantee any Debt secured by a Lien on any shares of capital stock of, or other ownership interests in, any Restricted Subsidiary ("Secured Debt") (whether such capital stock or ownership interests are owned or outstanding at the date of this Indenture or thereafter acquired or issued, as the case may be) if, immediately after giving effect thereto, the aggregate principal amount of all Secured Debt (other than Excluded Debt) would exceed 15% of the Company's Consolidated Net Tangible Assets, unless the Company provides, concurrently with or prior to the incurrence, assumption or guarantee of such Secured Debt, that the Securities shall be secured equally and ratably with (or, at the option of the Company, prior to) such Secured Debt. 52 58 (b) The provisions set forth in Section 9.8(a) shall not apply to Debt secured by the following Liens ("Excluded Debt"): (i) (A) Liens existing as of the date of this Indenture or (B) Liens relating to contracts entered into by the Company or any Subsidiary prior to the date of this Indenture; (ii) Liens securing all or any part of the indebtedness incurred pursuant to that certain Credit Agreement, dated as of February 10, 2000, by and among the Company, as Borrower, Bank of America, N.A., as Administrative Agent, Chase Securities Inc., as Syndication Agent, Morgan Stanley Senior Funding, Inc., as Documentation Agent, Paribas, as Co-Documentation, and various financial institutions and other persons from time to time parties thereto, as Lenders; (iii) Liens on any shares of capital stock or other ownership interests existing at the time of acquisition thereof (whether such acquisition is direct or by merger, acquisition of stock or assets or otherwise) by the Company or any of its Subsidiaries, provided such Liens were not created in contemplation of or in connection with such acquisition; (iv) Liens securing Debt owing by any Subsidiary to the Company or to any other Subsidiary; (v) Liens in favor of governmental bodies to secure advance, progress or other payments pursuant to any contract or statute; (vi) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements; (vii) Liens for taxes not yet due or which are being contested by the Company in good faith; and (viii) Liens for the sole purpose of extending, renewing or replacing in whole or in part the Debt secured thereby referred to in the foregoing clauses (i) to (vii), inclusive, or in this clause (viii); provided, however, that the Debt excluded pursuant to this clause (viii) shall be excluded only in an amount not to exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or part of the shares of capital stock or other ownership interests, as the case may be, subject to the Lien so extended, renewed or replaced. Section 9.9. Books of Record and Account; Compliance with Law. (a) The Company will keep, and will cause each Subsidiary to keep, proper books of record and account, either on a consolidated or individual basis. The Company shall cause its books of record and account to be examined by one or more firms of independent public accountants not less frequently than annually. The Company shall prepare its financial statements in accordance with GAAP. (b) The Company shall, and shall cause each of its Subsidiaries to, comply with all statutes, laws, ordinances, or government rules and regulations to which it is subject, non- 53 59 compliance with which would materially adversely affect the business, prospects, earnings, properties, assets or condition, financial or otherwise, of the Company and its Subsidiaries taken as a whole. Section 9.10. Taxes. The Company shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged prior to delinquency all taxes, assessments and governmental levies the non-payment of which would materially adversely affect the business, prospects, earnings, properties, assets or condition, financial or otherwise, of the Company and its Subsidiaries taken as a whole except those taxes, assessments and governmental levies whose amount, applicability or validity is being contested in good faith and by appropriate proceedings. Section 9.11. Additional Amounts. If any Securities of a series provide for the payment of Additional Amounts pursuant to Section 3.1(b)(18), the Company agrees to pay to the Holder of each such Security or any coupon appertaining thereto Additional Amounts as provided in or pursuant to this Indenture or such Securities. 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 any coupon appertaining thereto, such mention shall be deemed to include mention of the payment of any 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 any series, if the Securities of a series provide for the payment of Additional Amounts, 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 the Securities of such series shall be made to Holders of Securities of such series or the coupons appertaining thereto who are United States Aliens without withholding for or on account of any tax, assessment or similar governmental charge described in the terms of 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 or coupons, and the Company agrees to pay to the Trustee or such Paying Agent on or prior to the date such payment is due 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. Section 9.12. Calculation of Original Issue Discount. The Company shall file with the Trustee promptly at the end of each calendar year (i) written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year, and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time. 54 60 ARTICLE 10 REDEMPTION Section 10.1. Applicability of Article. Securities (including coupons, if any) of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) in accordance with this Article. Section 10.2. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities, including coupons, if any, shall be evidenced by or pursuant to a Board Resolution. In the case of any redemption at the election of the Company of less than all the Securities or coupons, if any, of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction or condition. Section 10.3. Selection of Securities to Be Redeemed. Unless otherwise specified as contemplated by Section 3.1, if less than all the Securities (including coupons, if any) of a series with the same terms are to be redeemed, the Trustee, not more than 45 days prior to the Redemption Date, shall select the Securities of the series to be redeemed in such manner as the Trustee shall deem fair and appropriate. The Trustee shall make the selection from Securities of the series that are Outstanding and that have not previously been called for redemption and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. The Trustee shall promptly notify the Company in writing of the Securities selected by the Trustee for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities (including coupons, if any) shall relate, in the case of any Securities (including coupons, if any) redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities (including coupons, if any) which has been or is to be redeemed. Section 10.4. Notice of Redemption. Unless otherwise specified as contemplated by Section 3.1, notice of redemption shall be given in the manner provided in Section 1.6 not less than 30 days nor more than 60 days prior to the Redemption Date to the Holders of the Securities to be redeemed. All notices of redemption shall state: (1) the Redemption Date; 55 61 (2) the Redemption Price; (3) if less than all the Outstanding Securities of a series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Security or Securities to be redeemed; (4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed; (5) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price; (6) that Securities of the series called for redemption and all unmatured coupons, if any, appertaining thereto must be surrendered to the Paying Agent to collect the Redemption Price; (7) that, on the Redemption Date, the Redemption Price, together with (except as otherwise set forth in Section 10.6 or as may otherwise be specified with respect to such Securities pursuant to Section 3.1) accrued and unpaid interest, if any, on and Additional Amounts, if any, with respect to the Securities (or portions thereof) to be redeemed, will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; (8) that the redemption is for a sinking fund, if such is the case; (9) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished; and (10) the CUSIP number, if any, of the Securities. Notice of redemption of Securities to be redeemed 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. Section 10.5. Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article 11, segregate and hold in trust as provided in Section 9.3) an amount of money in the currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of, and (unless the Redemption Date shall be an Interest Payment Date) interest accrued to the Redemption Date on, all Securities or portions thereof which are to be redeemed on that date. Unless any Security by its terms prohibits any sinking fund payment obligation from being satisfied by delivering and crediting Securities (including Securities redeemed otherwise than 56 62 through a sinking fund), the Company may deliver such Securities to the Trustee for crediting against such payment obligation in accordance with the terms of such Securities and this Indenture. Section 10.6. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified (together with (except as otherwise set forth in this Section 10.6 or as may otherwise be specified with respect to such Securities pursuant to Section 3.1) accrued interest, if any, thereon and Additional Amounts, if any, with respect thereto to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for any such interest appertaining to any Bearer Security so to be redeemed, except to the extent provided below, shall be void. Except as provided in the next succeeding paragraph, upon surrender of any such Security, including coupons, if any, for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest and Additional Amounts, if any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of coupons for such interest; and provided, further, that, unless otherwise specified as contemplated by Section 3.1, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.7. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside of the United States (except as otherwise provided pursuant to Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of those coupons. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by or prescribed therefor in the Security. Section 10.7. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part at any Place of Payment therefor (with, if the Company or the Trustee so required, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company shall execute and the Trustee shall authenticate and deliver to the Holder of that Security, without service charge, a new Security or Securities of the same series, having the same form, terms and Stated Maturity, in any authorized denomination equal in aggregate principal amount to the unredeemed portion of the principal amount of the Security surrendered. 57 63 ARTICLE 11 SINKING FUNDS Section 11.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. Section 11.2. Satisfaction of Sinking Fund Payments with Securities. The Company (i) may deliver Outstanding Securities of a series (other than any previously called for redemption) together, in the case of Bearer Securities of such series, with all unmatured coupons appertaining thereto and (ii) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. Section 11.3. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 11.2 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 10.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 10.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 10.6 and 10.7. 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 instrument. 58 64 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written. FIDELITY NATIONAL FINANCIAL, INC. By: /s/ MARLAN WALKER ------------------------------------ Name: Marlan Walker Title: Executive Vice President, Legal Attest: /s/ HILARY BURKEMPER - ---------------------------------------- Hilary Burkemper Assistant Corporate Secretary THE BANK OF NEW YORK By: /s/ MICHAEL PITFICK ------------------------------------ Name: Michael Pitfick Title: 59 EX-4.2 5 a75361ex4-2.txt EXHIBIT 4.2 1 EXHIBIT 4.2 CERTIFICATE OF EXECUTIVE VICE PRESIDENT, LEGAL AND VICE PRESIDENT AND ASSISTANT CORPORATE SECRETARY PURSUANT TO SECTIONS 1.2, 2.1, 3.1 AND 3.3 OF THE INDENTURE The undersigned, Marlan Walker and Hilary Burkemper, do hereby certify that they are the duly appointed and acting Executive Vice President, Legal and Vice President and Assistant Corporate Secretary, respectively, of FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the "Company"). Each of the undersigned also hereby certifies in such capacities, pursuant to Sections 1.2, 2.1, 3.1 and 3.3 of the Indenture dated as of August 20, 2001 between the Company and The Bank of New York, as Trustee (the "Indenture"), that: A. There has been established pursuant to resolutions duly adopted by the Board of Directors of the Company and a duly authorized committee thereof (a copy of such resolutions being attached hereto as Exhibit A), a series of Securities (as that term is defined in the Indenture) to be issued under the Indenture, with the following terms: 1. The title of the Securities of the series is "7.30% Notes due August 15, 2011" (the "Notes"), CUSIP number 316326AC1. 2. The limit upon the aggregate principal amount of the Notes which may be authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of other Notes pursuant to Sections 3.4, 3.5, 3.6, 8.6 or 10.7 of the Indenture) is $250,000,000. The limit upon the aggregate principal amount of the Notes may be increased by the Company without the consent of the holders of any outstanding Notes. 3. The date on which the principal of the Notes is payable, unless accelerated pursuant to the Indenture, shall be August 15, 2011. 4. The rates at which the Notes shall bear interest shall be 7.30% per annum. 5. The date from which interest shall accrue on the Notes shall be August 20, 2001. 6. The Interest Payment Dates on which interest on the Notes shall be payable are August 15 and February 15. The initial Interest Payment Date shall be February 15, 2002. The Regular Record Dates for the interest payable on the Notes on any Interest Payment Date shall be the August 1 and February 1, as the case may be, immediately preceding such Interest Payment Date. Interest on the Notes shall be payable to the persons in whose name the Notes are registered at 2 the close of business on the Regular Record Date (as defined in the Indenture) for such interest payment, except that interest payable on August 15, 2011 shall be payable to the persons to whom principal is payable on such date. 7. The place or places where the principal of and interest on the Notes shall be payable is at the agency of the Trustee maintained for that purpose at the office of The Bank of New York, 101 Barclay Street, Floor 21W, New York, New York 10286; provided that payment of interest, other than at Stated Maturity (as defined in the Indenture), may be made at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear in the Register (as defined in the Indenture); and provided further that the Depository (as defined in the Indenture), or its nominee, as holder of Notes in global form, shall be entitled to receive payments of interest by wire transfer of immediately available funds. 8. The Notes shall be redeemable at the option of the Company, at any time in whole or from time to time in part, at a price (the "Redemption Price") equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed, exclusive of interest accrued to the date of redemption (the "Redemption Date"), discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus 30 basis points, plus accrued interest thereon to the Redemption Date. The Notes called for redemption shall become due on the Redemption Date. For purposes of determining the Redemption Price, the following definitions are applicable: "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes. "Comparable Treasury Price" means, with respect to any Redemption Date: the average of the bid and the asked prices for the Comparable Treasury Issue, expressed as a percentage of its principal amount, at 4:00 p.m. on the third business day preceding that Redemption Date, as set forth on "Telerate Page 500," or such other page as may replace Telerate Page 500; or if Telerate Page 500, or any successor page, is not displayed or does not contain bid and/or asked prices for the Comparable Treasury Issue at that 2 3 time, the average of the Reference Treasury Dealer Quotations obtained by the Trustee for that Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee is unable to obtain at least four such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained by the Trustee. "Independent Investment Banker" means Lehman Brothers Inc. and any successors or, if it is unwilling or unable to select the applicable Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee and reasonably acceptable to the Company. "Reference Treasury Dealer" means Lehman Brothers Inc. and any successors and four other primary United States government securities dealers in New York City selected by the Independent Investment Banker (each, a "Primary Treasury Dealer"); provided that, if any of the foregoing ceases to be a Primary Treasury Dealer, the Company shall substitute another Primary Treasury Dealer therefor. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date, an average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue for the Notes, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding the Redemption Date. "Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity, computed as of the third business day immediately preceding the Redemption Date, of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue, expressed as a percentage of its principal amount, equal to the applicable Comparable Treasury Price for the Redemption Date. 9. There is no obligation of the Company to redeem or purchase the Notes pursuant to any sinking fund or analogous provisions, or to repay any of the Notes prior to Stated Maturity at the option of a holder thereof. 10. The Notes shall be issued in fully registered form in denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000. 11. The principal amount of the Notes shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 5.2 of the Indenture. 12. Section 9.8 of the Indenture shall be deemed to be amended, for purposes of the Notes only, to delete the provisions appearing therein in their entirety and to replace such provisions with the following: 3 4 "Section 9.8. Limitation on Liens. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, incur, assume or guarantee any Debt secured by a Lien on any part of its property, whether now owned or hereafter acquired, without effectively securing the Notes equally and ratably with that Debt, other than the following: (a) any Lien created under the Credit Agreement (as defined below) or any document executed and delivered pursuant to or in accordance with the requirements thereof; (b) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty, or to the extent that non-payment thereof is being contested in good faith and by proper proceedings, if the Company or the applicable Restricted Subsidiary has maintained adequate reserves (in the good faith judgment of the management of the Company) with respect thereto in accordance with GAAP; (c) carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or other similar Liens arising in the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested in good faith by appropriate proceedings diligently prosecuted; (d) Liens existing on August 20, 2001; (e) Liens consisting of pledges or deposits of cash or securities made by any Restricted Subsidiary in the insurance business as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy the requirements of, any administrative or governmental body of the state of domicile of such Restricted Subsidiary responsible for the regulation thereof; (f) Liens consisting of judgment or judicial attachment Liens (other than arising as a result of claims under or related to insurance contracts or policies, retrocession agreements or reinsurance agreements); provided that the enforcement of such Liens is effectively stayed or fully covered by insurance and all such Liens in the aggregate at any time outstanding for the Company and its Restricted Subsidiaries do not exceed $20,000,000; (g) Liens on assets subject to, and securing obligations in respect of, leases that, in conformity with GAAP, are, or are required to be, accounted for as capital leases on the applicable balance sheet, which are entered into in the ordinary course of business and are non-recourse to the Company or its Restricted Subsidiaries, and other such leases in an aggregate amount not to exceed $15,000,000 at any one time outstanding; 4 5 (h) Liens securing obligations permitted under Sections 8.4(f) and (g) of the Credit Agreement, to the extent such Liens are identified and permitted under such sections; (i) Liens arising as a result of claims under or related to insurance contracts or policies, reinsurance agreements or retrocession agreements in the ordinary course of business, or securing Debt of Restricted Subsidiaries in the insurance business incurred or assumed in connection with the settlement of claim losses in the ordinary course of business of such Restricted Subsidiaries; (j) Liens on assets of a Person that becomes a Restricted Subsidiary after August 20, 2001 securing Debt of such Person, which Liens and Debt previously existed and were not created in contemplation of such acquisition, and which Liens are not spread to cover any other property; (k) Liens on assets of the Company or its Restricted Subsidiaries securing Debt owed to the Company or a Restricted Subsidiary; (l) so long as no Default or Event of Default has occurred and is continuing, other Liens securing obligations in an aggregate amount not exceeding $20,000,000; and (m) any extension, renewal or replacement of the foregoing; provided that the Liens permitted hereby shall not be spread to cover any additional Debt or property (other than a substitution of like property). For purposes of this Section 9.8, "Credit Agreement" shall mean the Credit Agreement dated as of February 10, 2000 among the Company, Bank of America, N.A., as Administrative Agent, Chase Securities Inc., as Syndication Agent, Morgan Stanley Senior Funding, Inc., as Documentation Agent, Paribas, as Co-Documentation Agent, and the financial institutions and other persons from time to time parties thereto, as amended, supplemented, amended and restated or otherwise modified from time to time. For purposes of this Section 9.8, the term "Restricted Subsidiary" shall include all Subsidiaries of the Company except FNF Capital, Inc., Fidelity Asset Management, Inc., Micro General Corporation, Fidelity National Information Solutions, Inc., any of their respective Subsidiaries, and any other Person defined as an "Excluded Subsidiary" under the terms of the Credit Agreement. 13. Section 5.1(4) of the Indenture shall be deemed to be amended, for purposes of the Notes only, to delete the provision appearing therein in its entirety and to replace such provision with the following: 5 6 "(4) default in the payment when due of amounts payable under any bond, note, debenture or other evidence of Debt of the Company (including such default with respect to any other series of Securities), or under any mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any Debt of the Company, whether such Debt exists on the date of this Indenture or shall hereafter be incurred or created, in an aggregate amount exceeding $20,000,000, or default under any such evidence of Debt (including default with respect to any other series of Securities), or under any such other instrument, which results in such Debt in an aggregate principal amount exceeding $20,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, and such outstanding amount shall not be paid in full, such acceleration shall not be rescinded or annulled or such Debt shall not be paid in full, or there shall not be deposited into trust a sum of money sufficient to pay in full such outstanding amount or such Debt, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes a written notice specifying such default and requiring the Company to cause such outstanding amount to be paid in full, such acceleration to be rescinded or annulled, or such Debt to be paid in full, or to deposit into trust a sum of money sufficient to pay in full such outstanding amount or Debt and stating that such notice is a "Notice of Default" hereunder;" 14. The Notes shall be defeasible as provided in Sections 4.4 and 4.5 of the Indenture. 15. The Notes shall be issued in global form. The Depository Trust Company shall be the Depository for the Notes in global form. The Notes shall only be transferred in accordance with the provisions of Section 3.5 of the Indenture. B. The form of the global Security representing the Notes is attached hereto as Exhibit B. C. The Trustee is appointed as Registrar and Paying Agent. D. The foregoing form and terms of the Notes have been established in conformity with the provisions of the Indenture. E. The undersigned have read the provisions of Sections 3.1 and 3.3 of the Indenture and the definitions relating thereto and the resolutions adopted by the Board of Directors of the Company and a duly authorized committed thereof delivered herewith and have examined the form of global Security representing the Notes. In the opinion of each of the undersigned, each has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not all conditions precedent provided in the Indenture relating to the establishment, authentication and delivery of the series of Securities under the Indenture, designated as 6 7 the Notes in this Certificate, have been complied with. In the opinion of each of the undersigned, all such conditions precedent have been complied with. F. The undersigned, by execution of this Certificate, hereby certify the actions taken by the Board of Directors of the Company and the duly authorized committee thereof in determining and setting the specific terms of the Notes and hereby further certify that attached hereto as Exhibits A and B, respectively, are a copy of resolutions duly adopted by the Board of Directors of the Company on August 10, 2001 and a duly authorized committee thereof on August 10, 2001 pursuant to which the terms of the Notes set forth above have been established and the form of global Security representing the Notes as duly approved by the Board of Directors of the Company and such committee. [Remainder of page intentionally left blank] 7 8 IN WITNESS WHEREOF, the undersigned have hereunto executed this Certificate as of the 20th day of August, 2001. /s/ MARLAN WALKER ---------------------------------------- Marlan Walker Executive Vice President, Legal /s/ HILARY BURKEMPER ---------------------------------------- Hilary Burkemper Vice President and Assistant Corporate Secretary S-1 EX-4.3 6 a75361ex4-3.txt EXHIBIT 4.3 1 EXHIBIT 4.3 THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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. No. 1 CUSIP No.: 316326AC1 7.30% NOTE DUE AUGUST 15, 2011 FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Two Hundred and Fifty Million Dollars ($250,000,000) on August 15, 2011. Interest Payment Dates: February 15 and August 15 Regular Record Dates: February 1 and August 1 Authenticated: August 20, 2001 Dated: August 20, 2001 FIDELITY NATIONAL FINANCIAL, INC. By: /s/ ALAN L. STINSON By: /s/ MARLAN WALKER -------------------------------- ------------------------------------ Alan L. Stinson Marlan Walker Executive Vice President Executive Vice President, Legal and Chief Financial Officer Certificate of Authentication The Bank of New York, as Trustee, certifies that this is one of the Securities described in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By: /s/ MICHAEL PITFICK ------------------------------------ Authorized Signatory 2 FIDELITY NATIONAL FINANCIAL, INC. 7.30% NOTE DUE AUGUST 15, 2011 1. INTEREST. Fidelity National Financial, Inc., a Delaware corporation (the "Company"), promises to pay interest on the principal amount of this Security at the rate of 7.30% per annum. The Company shall pay interest semiannually on February 15 and August 15 of each year (each an "Interest Payment Date"), commencing February 15, 2002, until the principal is paid or made available for payment. Interest on this Security will accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid, from August 20, 2001. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. 2. METHOD OF PAYMENT. The Company shall pay interest on this Security (except defaulted interest, if any, which shall be paid on such special payment date as may be fixed by the Company to Holders of record on such special record date as may be fixed by the Company) to the persons who are registered Holders at the close of business on the February 1 or August 1 immediately preceding any Interest Payment Date, except that interest payable on August 15, 2011 shall be payable to the persons to whom principal is payable on such date. A holder must surrender this Security to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. 3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the "Trustee") shall act as Paying Agent and Registrar. The Company may change or appoint any Paying Agent, Registrar or co-Registrar without notice. The Company or any of its Subsidiaries may act as Paying Agent, Registrar or co-Registrar. 4. INDENTURE. The Company issued this Security under an Indenture dated as of August 20, 2001 between the Company and the Trustee (the "Indenture"). The terms of this Security include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as in effect on the date of the Indenture. This Security is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement thereof. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Fidelity National Financial, Inc., 17911 Von Karman Avenue, Suite 300, Irvine, California 92614, Attention: Corporate Secretary. 5. PERSONS DEEMED OWNERS. The registered Holder or Holders of this Security shall be treated as owners of it for all purposes. 6. OPTIONAL REDEMPTION. This Security is redeemable at the option of the Company, at any time in whole or from time to time in part, at a price (the "Redemption Price") equal to the greater of (i) 100% of the principal amount of this Security to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest 2 3 on the principal amount of this Security to be redeemed, exclusive of interest accrued to the date of redemption (the "Redemption Date"), discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield plus 30 basis points, plus accrued interest thereon to the Redemption Date. The principal amount of this Security called for redemption shall become due on the Redemption Date. For purposes of determining the Redemption Price, the following definitions are applicable: "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of this Security that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of this Security. "Comparable Treasury Price" means, with respect to any Redemption Date: the average of the bid and the asked prices for the Comparable Treasury Issue, expressed as a percentage of its principal amount, at 4:00 p.m. on the third business day preceding that Redemption Date, as set forth on "Telerate Page 500," or such other page as may replace Telerate Page 500; or if Telerate Page 500, or any successor page, is not displayed or does not contain bid and/or asked prices for the Comparable Treasury Issue at that time, the average of the Reference Treasury Dealer Quotations obtained by the Trustee for that Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee is unable to obtain at least four such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained by the Trustee. "Independent Investment Banker" means Lehman Brothers Inc. and any successors or, if it is unwilling or unable to select the applicable Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee and reasonably acceptable to the Company. "Reference Treasury Dealer" means Lehman Brothers Inc. and any successors and four other primary United States government securities dealers in New York City selected by the Independent Investment Banker (each, a "Primary Treasury Dealer"); provided that, if any of the foregoing ceases to be a Primary Treasury Dealer, the Company shall substitute another Primary Treasury Dealer therefor. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date, an average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue for this Security, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding the Redemption Date. 3 4 "Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity, computed as of the third business day immediately preceding the Redemption Date, of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue, expressed as a percentage of its principal amount, equal to the applicable Comparable Treasury Price for the Redemption Date. 7. UNCLAIMED MONEY. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request. After that, Holders entitled to the money must look to the Company for payment unless an abandoned property law designates another person. 8. AMENDMENT, SUPPLEMENT. Subject to certain exceptions, the Indenture or this Security may be amended or supplemented with the consent of at least a majority in aggregate principal amount of the Holders affected by the amendment. Without the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or this Security to, among other things, cure any ambiguity, defect or inconsistency, to create another series of Securities and establish its terms or to make any other change, provided such action does not adversely affect the rights of any Holder. 9. DEFAULTS AND REMEDIES. Any of the following shall constitute an Event of Default: (a) default in the payment of any interest on this Security when the same becomes due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of any principal of or premium, if any, on this Security when the same becomes due and payable at its Maturity (whether at Stated Maturity, upon redemption, or otherwise); or (c) default in the performance, or breach, of any covenant or warranty of the Company in the Indenture or this Security (other than a covenant or warranty for which the consequences of breach or nonperformance are addressed elsewhere in this Section 9 or a covenant or warranty which has expressly been included in the Indenture, whether or not by means of a supplemental indenture, solely for the benefit of Securities of a series other than this Security), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of this Security a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a "Notice of Default" hereunder; or (d) default in the payment when due of amounts payable under any bond, note, debenture or other evidence of Debt of the Company (including such default with respect to any other series of Securities), or under any mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any Debt of the Company, whether such Debt exists on the date of the Indenture or shall hereafter be incurred or created, in an aggregate amount exceeding $20,000,000, or default under any such evidence of Debt (including default with respect to any other series of Securities), or under any such other 4 5 instrument, which results in such Debt in an aggregate principal amount exceeding $20,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, and such outstanding amount shall not be paid in full, such acceleration shall not be rescinded or annulled or such Debt shall not be paid in full, or there shall not be deposited into trust a sum of money sufficient to pay in full such outstanding amount or such Debt, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of this Security a written notice specifying such default and requiring the Company to cause such outstanding amount to be paid in full, such acceleration to be rescinded or annulled, or such Debt to be paid in full, or to deposit into trust a sum of money sufficient to pay in full such outstanding amount or Debt and stating that such notice is a "Notice of Default" hereunder; or (e) the Company pursuant to or within the meaning of any Bankruptcy Law (A) commences a voluntary case or proceeding, (B) consents to the entry of an order for relief against it in an involuntary case or proceeding or to the commencement of any bankruptcy or insolvency case or proceeding against it, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general assignment for the benefit of its creditors; or (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, (C) orders the winding up or liquidation of the Company , (D) adjudges the Company a bankrupt or insolvent or (E) approves as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect to the Company; and any such order or decree described in this clause (f) remains unstayed and in effect for 60 days. If an Event of Default with respect to this Security occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of this Security, by written notice to the Company (and, if given by the Holders, to the Trustee), may declare the principal of and accrued interest, if any, on the aggregate principal amount of this Security to be due and payable, and upon any such declaration such principal and interest, if any, shall be immediately due and payable. At any time after such a declaration of acceleration with respect to this Security has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as provided in the Indenture, the Holders of a majority in aggregate principal amount of this Security, by written notice to the Trustee, may rescind and annul such declaration and its consequences as provided in the Indenture. The Holders of a majority in aggregate principal amount of this Security by written notice to the Trustee may waive any past Default or Event of Default with respect to this Security and its consequences except (a) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest on, this Security or (b) in respect of a covenant or provision hereof which pursuant to the Indenture cannot be amended or modified without the 5 6 consent of each Holder of this Security. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured. 10. AMOUNT UNLIMITED. The aggregate principal amount of Securities which may be authenticated and delivered under the Indenture is unlimited. The Securities may be issued from time to time in one or more series. The Company may from time to time, without the consent of the existing Holders of this Security, issue additional Securities of the series of which this Security is a part on substantially the same terms and conditions as those of this Security. 11. SUCCESSOR CORPORATION. When a successor corporation assumes all the obligations of its predecessor under this Security and the Indenture, the predecessor corporation shall be released from those obligations. 12. TRUSTEE DEALINGS WITH COMPANY. The Bank of New York, as Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not Trustee. 13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under this Security or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder by accepting this Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Security. 14. DISCHARGE OF INDENTURE. The Indenture contains certain provisions pertaining to defeasance, which provisions shall for all purposes have the same effect as if set forth herein. 15. AUTHENTICATION. This Security shall not be valid until the Trustee signs the certificate of authentication on the other side of this Security. 16. GOVERNING LAW. This Security shall be governed by and construed in accordance with the internal laws of the State of New York. 17. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors Act). [Remainder of Page Intentionally Left Blank] 6 7 ASSIGNMENT FORM If you the Holder want to assign this Security, fill in the form below: I or we assign and transfer this Security to (Insert assignee's social security or tax ID number) -------------------------- -------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address, and zip code) and irrevocably appoint , ------------------------------------------------------- - -------------------------------------------------------------------------------- agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. Date: --------------------------------- Your signature: - -------------------------------------- (Sign exactly as your name appears on the other side of this Security) Signature Guarantee: ------------------------------ EX-5.1 7 a75361ex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 [STRADLING YOCCA CARLSON & RAUTH LETTERHEAD] August 20, 2001 Fidelity National Financial, Inc. 17911 Von Karman Avenue Irvine, California 93110 Re: Public Offering of 7.30% Notes due August 15, 2011 Ladies and Gentlemen: We have acted as counsel for Fidelity National Financial, Inc., a Delaware corporation (the "Company"), in connection with the execution and delivery by the Company of that certain Underwriting Agreement, dated August 13, 2001 (the "Underwriting Agreement"), by and among the Company and Lehman Brothers Inc., Banc of America Securities LLC, and Bear Stearns & Co. Inc. (collectively, the "Underwriters"), pursuant to which the Underwriters severally agreed to purchase $250,000,000 aggregate principal amount of the Company's 7.30% Notes due August 15, 2011 (the "Notes"). This Opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act. The issuance of the Notes has been registered with the Commission under the Securities Act pursuant to a Registration Statement filed with the Commission on March 30, 2001, as amended by Amendment No. 1 thereto filed on April 19, 2001 (collectively, the "Registration Statement"). In connection with the preparation of this opinion, we have examined such documents and considered such questions of law as we have deemed necessary or appropriate. We have assumed that there are no other documents or agreements between the Company and the Underwriters which would expand or otherwise modify the respective rights and obligations of the Company and the Underwriters as set forth in the Underwriting Agreement and the documents required or contemplated thereby. We have assumed the authenticity of all documents submitted to us as originals, the conformity with originals of all documents submitted to us as copies, and the genuineness of all signatures (other than signatures of officers of the Company). We have also assumed that, with respect to all parties to agreements or instruments relevant hereto (other than the Company), such parties had the requisite power and authority to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action, executed and delivered by such parties, and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. 2 As to questions of fact material to our opinions, we have relied upon the representations of each party made in the Underwriting Agreement and the other documents and certificates delivered in connection therewith, certificates of officers of the Company, and certificates and advices of public officials. Based upon the foregoing, we are of the opinion that the Notes were validly issued, fully-paid and non-assessable and are the legal, valid and binding obligations of the Company enforceable against it in accordance with their terms, except as the enforceability thereof may be subject to or limited by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors and (b) general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law. We consent to the use of this Opinion as an exhibit to the Registration Statement. Very truly yours, STRADLING YOCCA CARLSON & RAUTH /s/ Stradling Yocca Carlson & Rauth -----END PRIVACY-ENHANCED MESSAGE-----

EX-1.1

   1
                                                                     EXHIBIT 1.1


                                  $250,000,000

                        FIDELITY NATIONAL FINANCIAL, INC.

                     7.30% SENIOR NOTES DUE AUGUST 15, 2011


                             UNDERWRITING AGREEMENT


                                                                 August 13, 2001



LEHMAN BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
BEAR STEARNS & CO. INC.
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York  10285

Ladies and Gentlemen:

      Fidelity National Financial, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $250,000,000 aggregate principal amount of its 7.30%
Senior Notes due August 15, 2011 (the "Notes") to you (the "Underwriters"). The
Notes will be issued pursuant to an Indenture dated as of August 20, 2001 (the
"Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee"). This agreement (this "Agreement") is to confirm the agreement
concerning the purchase of the Notes from the Company by the Underwriters.

      1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:

      (a) The registration statement on Form S-3 (File No. 333-57904) with
respect to the Notes (i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, (ii) has been filed with
the Commission under the Securities Act, (iii) has become effective under the
Securities Act and is not proposed to be amended and (iv) is not subject to any
stop order under the Securities Act suspending the effectiveness of such
registration statement or any Rule 462(b) registration statement relating
thereto, and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission. If any
post-effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. Copies of
such registration statement as amended to date have been delivered by the
Company to you.

   2

      For purposes of this Agreement, "Effective Time" means the most recent
date and the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means the prospectus included in such registration statement, or
amendments thereof, before such registration statement became effective under
the Securities Act and any prospectus filed with the Commission by the Company
that omitted information required by Rule 430A or 434 of the Rules and
Regulations or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)"), that was used after such effectiveness and prior to
the execution and delivery of this Agreement; "Registration Statement" means
such registration statement, as amended at the Effective Time, including any
documents incorporated by reference therein and, if the Effective Date is on or
before the date of this Agreement, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) in accordance with
Section 4(a) hereof and deemed to be a part thereof as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations;
"Prospectus" means the form of prospectus relating to the Notes (including the
prospectus supplement), as first used to confirm sales of the Notes; and
"described in the Prospectus" or "disclosed in the Prospectus" means described
or disclosed, as applicable, in the Prospectus or any document incorporated by
reference therein.

      If it is contemplated, at the time this Agreement is executed, that a
registration statement will be filed pursuant to Rule 462(b) under the
Securities Act before the offering of the Notes may commence, the term
"Registration Statement" as used in this Agreement includes such registration
statement, as the same may be amended from time to time. Reference made herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus or Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or Prospectus. For purposes of this
Section l, all references to the Registration Statement, any post-effective
amendments thereto and the Prospectus shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system ("EDGAR"). The Commission has not
issued any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus.

      (b) If the Effective Date is on or before the date of this Agreement, (i)
the Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
when they become effective or are first used to confirm sales of the Notes, as
the case may be, conform to the requirements of the Securities Act and the Rules
and Regulations, (ii) the Registration Statement and any amendment thereto does
not and will not, as of the applicable Effective Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) the Prospectus and any amendment or supplement thereto will not, as of the
first date of its use to confirm sales of the Notes, contain any untrue
statement of a material fact or omit to state any material fact required

                                       2
   3

to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.

      If the Effective Date is after the date of this Agreement, (i) the
Registration Statement and the Prospectus and any further amendments or
supplements thereto will, when they become effective or are first used to
confirm sales of the Notes, as the case may be, conform to the requirements of
the Securities Act and the Rules and Regulations, (ii) the Registration
Statement and any amendment thereto will not, as of the applicable Effective
Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus and any amendment or supplement
thereto will not, as of the date on which the Prospectus and any amendment or
supplement thereto is first used to confirm sales of the Notes, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no representation or warranty
as to information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, and in conformity with written information
furnished to the Company by you, expressly for inclusion therein. There is no
contract or document required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement or to
a document incorporated by reference into the Registration Statement which is
not described or filed as required.

      (c) KPMG LLP, whose report is included or incorporated by reference in the
Prospectus, are independent certified public accountants with respect to the
Company and its Subsidiaries (as defined in Section 13 hereof), as required by
the Securities Act and the Rules and Regulations. The financial statements
(including the related notes and supporting schedules) included or incorporated
by reference in the Registration Statement, any Preliminary Prospectus and the
Prospectus present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated and conform in all material respects with
the Rules and Regulations, except as otherwise noted therein; and the supporting
schedules included or incorporated by reference in the Registration Statement
present fairly in all materials respects the information required to be stated
therein.

      (d) Each of the Company and its Significant Subsidiaries (as defined in
Exhibit A hereto) has been duly organized or formed and is validly existing in
good standing under the laws of the jurisdiction of its organization or
formation, with full power and authority to own, lease and operate its
properties and conduct its business and, in the case of the Company, to enter
into and perform its obligations under this Agreement and the Indenture; and
each of the Company and its Subsidiaries holds all licenses and is duly
registered and qualified to do business and is in good standing in each
jurisdiction in which the character of the business conducted by it or the
location of the properties owned, leased or operated by it make such licensure,
registration or qualification necessary, except where the failure to be so
licensed, registered or qualified would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole.

                                       3
   4

      (e) All of the outstanding shares of capital stock of each Significant
Subsidiary of the Company that is a corporation have been duly authorized and
validly issued and are fully paid and nonassessable. Except as disclosed in the
Prospectus, all of the outstanding shares of capital stock, partnership
interests or other ownership interests of each Significant Subsidiary of the
Company are owned directly or indirectly by the Company, free and clear of any
material claim, lien, encumbrance, security interest, restriction upon voting or
transfer, preemptive rights or any other claim of any third party, except such
as are described in the Prospectus.

      (f) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any material adverse change in, or
adverse development which, individually or in the aggregate, materially affects
or may materially affect, the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole from the respective dates as of which information is given in the
Prospectus.

      (g) Neither (i) the execution or delivery hereof by the Company, (ii) the
consummation of the transactions contemplated hereby, (iii) the execution and
delivery of the Indenture and the Notes by the Company nor (iv) compliance by
the Company with all of the provisions of this Agreement, the Indenture and the
Notes, will result in a breach or violation of, or constitute a default under,
the certificate of incorporation, by-laws, partnership agreement or other
governing documents of the Company or any of its Subsidiaries, or any material
agreement, indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or to which any of
their properties is subject, nor will any such action or the performance by the
Company of its obligations hereunder violate any material law, rule,
administrative regulation or decree of any court, or any governmental agency or
body having jurisdiction over the Company, its Subsidiaries or any of their
respective properties, or result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of the Company or any of
its Subsidiaries. Except for permits, consents, approvals and similar
authorizations required under the securities or "Blue Sky" laws of certain
jurisdictions, and except for such permits, consents, approvals and
authorizations which have been obtained or the failure to obtain would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole or affect the ability of the
Company to perform its obligations under this Agreement, no permit, consent,
approval, authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation of the
transactions contemplated by this Agreement.

      (h) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and binding agreement of the Company, and is
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).

      (i) Neither the Company nor any of its Subsidiaries (i) is in violation of
its certificate of incorporation or by-laws or other governing documents, (ii)
is in default, and no

                                       4
   5

event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any agreement, indenture or other instrument to which it
is a party or by which it is bound or to which any of its properties is subject,
except for any such defaults that would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole, or (iii) is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property may be subject, except
for any such violations that would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole.

      (j) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Indenture (i) has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), (ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms to the description thereof in the Registration
Statement and the Prospectus.

      (k) The Notes have been duly and validly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
free of any preemptive or similar rights to subscribe to or purchase the same
arising by operation of law or under the charter or by-laws of the Company or
otherwise, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
and the Notes conform, or will conform, to the description thereof in the
Registration Statement and the Prospectus.

      Neither the filing of the Registration Statement nor the offering or sale
of the Notes as contemplated by this Agreement gives rise to any rights, other
than those which have been duly waived or satisfied, for or relating to the
registration of any securities of the Company. The capitalization of the Company
as of the date of the most recent balance sheet included in the Prospectus is as
set forth in the Prospectus. The Company has all requisite corporate power and
authority to issue, sell and deliver the Notes in accordance with and upon the
terms and conditions set forth in this Agreement and in the Registration
Statement and Prospectus. All corporate action required to be taken by the
Company for the authorization, issuance, sale and delivery of the Notes to be
sold by the Company hereunder has been validly and sufficiently taken.

      (l) Each contract, agreement or arrangement to which the Company or any of
its Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the

                                       5
   6

property or assets of the Company or any of its Subsidiaries is subject, which
is material to the condition (financial or other), results of operations,
business or prospects of the Company and its Subsidiaries taken as a whole, has
been duly and validly authorized, executed and delivered by the Company or its
Subsidiary, as applicable; none of such contracts, agreements or arrangements
has been assigned by the Company or any of its Subsidiaries to any
non-affiliated party other than in the ordinary course of business, and the
Company knows of no present condition or fact which would prevent compliance by
the Company or any of its Subsidiaries or any other party thereto with the terms
of any such contract, agreement or arrangement in accordance with its terms in
all material respects, except for any such failures to comply that would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole; neither the Company nor any
of its Subsidiaries has any present intention to exercise any right that it may
have to cancel any such contract, agreement or arrangement or otherwise to
terminate its rights and obligations thereunder, and none of them has any
knowledge that any other party to any such contract, agreement or arrangement
has any intention not to render full performance in all material respects as
contemplated by the terms thereof, except for any such cancellations,
terminations or failures to perform that would not, individually or in the
aggregate, result in a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole.

      (m) There is no litigation or governmental proceeding to which the Company
or any of its Subsidiaries is a party or to which any property of the Company or
any of its Subsidiaries is subject or which is pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries that
could reasonably be expected to, individually or in the aggregate, result in a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole or which is required to be disclosed in the Prospectus and is not
disclosed.

      (n) The documents incorporated by reference into each Preliminary
Prospectus and the Prospectus, at the time they were or are filed with the
Commission, conform or will conform, as the case may be, with the requirements
of the Securities Act and the Rules and Regulations and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and did not or will
not, as the case may be, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.

      (o) The Company has not taken and shall not take, directly or indirectly,
any action designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of the Notes to facilitate the sale or resale of the Notes.

      (p) The Notes will be pari passu with all existing and future unsecured
and unsubordinated indebtedness of the Company.

      (q) The conditions for the Company's use of Form S-3 for filing the
Registration Statement, as set out in the general instructions to such form,
have been satisfied.

                                       6
   7

      (r) Except as disclosed in the Prospectus, all reinsurance treaties,
reinsurance contracts and reinsurance agreements to which the Company or any of
its Subsidiaries is a party are in full force and effect, and none of the
Company or any of its Subsidiaries is in violation of, or in default in the
performance, observance or fulfillment of, any obligation, agreement, covenant
or condition contained therein, except where the failure to be in full force and
effect and except where any such violation or default would not, singly or in
the aggregate, have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole; none of the Company or any of its Subsidiaries
has received any notice from any of the other parties to such treaties,
contracts or agreements which are material to its business that such other party
intends not to perform in any material respect such treaty, contract or
agreement; and the Company and its Subsidiaries have no reason to believe that
any of the parties to such treaties, contracts or agreements will be unable to
perform such treaty, contract, agreement or arrangement, except where such
non-performance would not, singly or in the aggregate, have a material adverse
effect on the condition (financial or other), results of operations, business or
prospects of the Company and its Subsidiaries taken as a whole.

      (s) Except as disclosed in the Prospectus, none of the Company or any of
its Subsidiaries have made any material changes in their insurance reserving
practices during the last two years.

      (t) Each of the Company and its Subsidiaries (i) holds such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
from insurance departments and other governmental or regulatory authorities
(each, an "Authorization") (including, without limitation, insurance licenses
from the insurance regulatory agencies of the various states or other
jurisdictions where it conducts business (the "Insurance Licenses")), and has
made all filings with and notices to, all governmental or regulatory authorities
and self-regulatory organizations and all courts and other tribunals, as are
necessary to own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such Authorizations
or Insurance Licenses or to make any such filing or notice would not, singly or
in the aggregate, have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole, and (ii) to the knowledge of the Company, has
fulfilled and performed all material obligations necessary to maintain such
Authorizations and Insurance Licenses.

      Each such Authorization and Insurance License is valid and in full force
and effect, and each of the Company and its Subsidiaries is in compliance with
all the terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto,
except where the failure so to comply or where the invalidity of such Insurance
Licenses or the failure of such Insurance Licenses to be in full force and
effect would not, singly or in the aggregate, have a material adverse effect on
the condition (financial or other), results of operations, business or prospects
of the Company and its Subsidiaries taken as a whole; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
Insurance License or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization or Insurance License, except where the revocation, suspension,
termination or impairment would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or other), results of operations,
business or prospects of the Company and its Subsidiaries taken as a whole; such
Authorizations and Insurance Licenses contain no restrictions that are
burdensome to the Company or any of its Subsidiaries, except

                                       7
   8

where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a material adverse
effect on the condition (financial or other), results of operations, business or
prospects of the Company and its Subsidiaries taken as a whole; and no insurance
regulatory agency or body has issued any order or decree impairing, restricting
or prohibiting the payment of dividends by any of the Subsidiaries to its
parent.

      (u) Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act"), or is subject to regulation as an "investment company" under
the 1940 Act.

      (v) The Company has unsecured non-convertible debt with a term of at least
four years rated by a nationally recognized statistical rating organization in
one of its four highest generic rating categories. At the time the Registration
Statement was filed and at the Effective Time, the Company met the eligibility
requirements under the Securities Act for the use of Form S-3, and the aggregate
market value of the voting and non-voting common equity of the Company held by
non-affiliates of the Company was at least $150 million.

      (w) The Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its Subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its Subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a material adverse effect on the condition (financial
or other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole.

      (x) The Company and its Subsidiaries have good and marketable title in fee
simple to all material real property owned by the Company and its Subsidiaries
and good and marketable title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, defects, restrictions or encumbrances of any kind, except (A) as
otherwise stated in the Registration Statement and the Prospectus or (B) those
which do not, singly or in the aggregate, materially affect the value of all
such properties in the aggregate and do not interfere with the use made and
proposed to be made of such property by the Company or any of its Subsidiaries
considered as one enterprise. All of the leases and subleases material to the
business of the Company and its Subsidiaries considered as one enterprise, and
under which the Company or any of its Subsidiaries holds properties described in

                                       8
   9

the Prospectus, are in full force and effect, and neither the Company nor any of
its Subsidiaries has received any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any of its
Subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or such Subsidiary of the continued
possession of the leased or subleased premises under any such lease or sublease.

      (y) Except as otherwise stated in the Registration Statement and the
Prospectus, and except as would not, singly or in the aggregate, result in a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole, (A) neither the Company nor any of its Subsidiaries is in violation of
any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law, or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) neither the Company nor any of its Subsidiaries fails
to possess any permit, authorization or approval required under any applicable
Environmental Laws or to be in compliance with their requirements, (C) there are
no pending or, to the Company's knowledge, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating to any
Environmental Law against the Company or any of its Subsidiaries and (D) there
are no events or circumstances (including costs and potential liabilities to
third parties) that might reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any of
its Subsidiaries relating to Hazardous Materials or any Environmental Laws.

      2. Purchase of the Notes by the Underwriters. Subject to the terms and
conditions and upon the basis of the representations and warranties herein set
forth, the Company agrees to issue and sell to the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a price equal to 98.947% of the principal amount thereof, plus accrued interest,
if any, from August 20, 2001, the principal amount of the Notes set forth
opposite such Underwriter's name in Schedule I hereto. The Underwriters propose
to offer the Notes to the public as set forth in the Prospectus.

      3. Delivery of and Payment for Notes. Delivery of the Notes shall be made
at such place or places as mutually may be agreed upon by the Company and the
Underwriters, at 10:00 A.M., New York City time, on August 20, 2001 or on such
later date not more than three Business Days after the foregoing date as shall
be determined by you and the Company (the "Closing Date"). Delivery of the Notes
shall be made to you by or on behalf of the Company against payment of the
purchase price therefor by wire transfer of immediately available funds.
Delivery of the Notes shall be made through the facilities of The Depository
Trust Company unless you shall otherwise instruct. Time shall be of the essence,
and delivery of the Notes at the

                                       9
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time and place specified in this Agreement is a further condition to the
obligations of each Underwriter.

      4. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:

      (a) If the Effective Date is on or before the date of this Agreement, the
Company shall comply with the provisions of and make all requisite filings with
the Commission pursuant to Rule 424(b) not later than the Commission's close of
business on the second Business Day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) of the Rules and Regulations. The Company shall advise you, promptly
after it receives notice thereof, of the time when, if the Effective Date is on
or before the date of this Agreement, any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed. The Company shall notify
you promptly of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for additional information;
the Company shall prepare and file with the Commission, promptly upon your
request, any amendments or supplements to the Registration Statement or the
Prospectus which, in your opinion, may be necessary or advisable in connection
with the distribution of the Notes; and the Company shall not file any amendment
or supplement to the Registration Statement or the Prospectus or file any
document under the Exchange Act before the termination of the offering of the
Notes by the Underwriters if such document would be deemed to be incorporated by
reference into the Prospectus, which filing is not consented to by you after
reasonable notice thereof, such consent not to be unreasonably withheld or
delayed.

      The Company shall advise you promptly of the issuance by the Commission or
any State or other regulatory body of any stop order or other order suspending
the effectiveness of the Registration Statement, suspending or preventing the
use of any Preliminary Prospectus or the Prospectus or suspending the
qualification of the Notes for offering or sale in any jurisdiction, or of the
institution of any proceedings for any such purpose; and the Company shall use
its best efforts to prevent the issuance of any stop order or other such order
and, should a stop order or other such order be issued, to obtain as soon as
possible the lifting thereof.

      (b) The Company shall furnish to each of you and to counsel for the
Underwriters such number of conformed copies of the Registration Statement, as
originally filed, and each amendment thereto (excluding exhibits other than this
Agreement), the Prospectus and all amendments and supplements to any of such
documents (including any document filed under the Exchange Act and deemed to be
incorporated by reference in the Preliminary Prospectus or Prospectus), in each
case as soon as available and in such quantities as you may from time to time
reasonably request.

      (c) Within the time during which the Prospectus relating to the Notes is
required to be delivered under the Securities Act, the Company shall comply with
all requirements imposed upon it by the Securities Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in force, so far
as is necessary to permit the continuance of sales of or dealings in the Notes
as contemplated by the provisions hereof and by the Prospectus. If during such
period any event occurs as a result of which the Prospectus as

                                       10
   11

then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend the Registration Statement or supplement
the Prospectus or file any document to comply with the Securities Act, the
Company shall promptly notify you and shall, subject to Section 4(a) above,
amend the Registration Statement or supplement the Prospectus or file any
document (at the expense of the Company) so as to correct such statement or
omission or to effect such compliance.

      (d) As soon as practicable, the Company shall make generally available to
its security holders (and shall deliver to you) an earnings statement satisfying
the requirements of Section 11(a) of the Securities Act and Rule 158 of the
Rules and Regulations.

      (e) Whether or not this Agreement becomes effective or is terminated or
the sale of the Notes to the Underwriters is consummated, the Company shall pay
or cause to be paid (A) all fees and expenses (including, without limitation,
all registration and filing fees and fees and expenses of the Company's
accountants but excluding fees and expenses of counsel for the Underwriters)
incurred in connection with the preparation, printing, filing, delivery and
shipping of the Registration Statement (including the financial statements
therein and all amendments and exhibits thereto), each Preliminary Prospectus,
the Prospectus, the Indenture, the Statement of Eligibility and Qualification of
the Trustee on Form T-1 filed with the Commission (the "Form T-1") and any
amendments or supplements of the foregoing and any documents incorporated by
reference into any of the foregoing and the copying, delivery and shipping of
this Agreement and Blue Sky Memoranda, (B) all fees and expenses incurred in
connection with the preparation and delivery to the Underwriters of the Notes
(including the cost of printing the Notes), (C) all filing fees and fees and
disbursements of counsel to the Underwriters incurred in connection with the
qualification of the Notes under state securities or Blue Sky laws, (D) any fees
required to be paid to rating agencies incurred in connection with the rating of
the Notes, (E) the fees, costs and charges of the Trustee, including the fees
and disbursements of counsel for the Trustee, and (F) all other costs and
expenses incident to the performance of its obligations hereunder for which
provision is not otherwise made in this Section.

      Except as provided in this Section, Section 6 and Section 8 hereof, the
Underwriters shall pay all of their own costs and expenses, including the fees
of their counsel and any advertising expenses incurred in connection with any
offers they may make. If the sale of the Notes provided for herein is not
consummated by reason of acts of the Company or changes in circumstances of the
Company pursuant to Section 8 hereof which prevent this Agreement from becoming
effective, or by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed or because any
other condition of the Underwriters' obligations hereunder is not fulfilled or
if the Underwriters shall decline to purchase the Notes for any reason permitted
under this Agreement (other than by reason of a default by any of the
Underwriters pursuant to Section 7 or if the Underwriters terminate this
Agreement under clause (iv), (v) or (vi) of Section 8(b) of this Agreement), the
Company shall reimburse the several Underwriters for all reasonable
out-of-pocket disbursements (including fees and disbursements of counsel)
incurred by the Underwriters in connection with any investigation or preparation
made by them in respect of the marketing of the Notes or in contemplation of the
performance by them of their obligations hereunder.

                                       11
   12

      (f) During the period of one year from the Closing Date, the Company shall
furnish to the Underwriters copies of all reports or other communications
furnished to stockholders, all reports or financial statements furnished to or
filed with the Commission and all reports and other communications furnished to
the Noteholders.

      (g) Until termination of the offering of the Notes, the Company shall
timely file all documents and amendments to previously filed documents required
to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act.

      (h) The Company shall apply the net proceeds from the sale of the Notes as
set forth in the Prospectus.

      (i) Until the 60 days following the Closing Date, the Company shall not,
without the prior written consent of Lehman Brothers Inc., directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of or
otherwise dispose of, any debt securities in the same market as the Notes.

      5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and
the Closing Date (as if made at the Closing Date), of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:

      (a) The Prospectus shall have been filed with the Commission in a timely
fashion in accordance with Section 4(a) hereof, the Registration Statement and
all post-effective amendments to the Registration Statement shall have become
effective, all filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made, and no such filings shall have been made
without the consent of the Underwriters; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto or suspending the qualification of the Notes for offering or sale in any
jurisdiction shall have been issued; no proceedings for the issuance of any such
order shall have been initiated or threatened; and any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been disclosed to you and complied with to
your satisfaction.

      (b) No Underwriter shall have been advised by the Company or shall have
discovered and disclosed to the Company that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of fact which in your opinion, or in the opinion of counsel to the Underwriters,
is material, or omits to state a fact which, in your opinion, or in the opinion
of counsel to the Underwriters, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.

      (c) On the Closing Date, you shall have received from O'Melveny & Myers
LLP, counsel for the Underwriters, such opinion or opinions with respect to the
validity of the Notes and other related matters as you may reasonably request,
and such counsel shall have received such documents and information as they
reasonably request to enable them to pass upon such matters.

                                       12
   13

      (d) On the Closing Date there shall have been furnished to you the opinion
(addressed to the Underwriters) of Stradling Yocca Carlson & Rauth, a
Professional Corporation, counsel for the Company, dated the Closing Date and in
form and substance reasonably satisfactory to the Underwriters, to the effect
that:

      (i) The Company has been duly incorporated and is validly existing and in
   good standing as a corporation under the laws of the jurisdiction of its
   incorporation, with full corporate power and authority to own, lease and
   operate its properties and conduct its business as described in the
   Prospectus. To the knowledge of such counsel, the Company is duly qualified
   to do business and is in good standing in each jurisdiction in which the
   character of the business conducted by it or the location of the properties
   owned, leased or operated by it makes such qualification necessary (except
   where the failure to so qualify would not, individually or in the aggregate,
   have a material adverse effect on the condition (financial or other), results
   of operations, business or prospects of the Company and its Subsidiaries
   taken as a whole).

      (ii) Neither the filing of the Registration Statement nor the offering or
   sale of the Notes as contemplated by this Agreement gives rise to any rights
   under any contracts, agreements or understandings known to such counsel,
   other than those which have been waived or satisfied, for or relating to the
   registration of any securities of the Company or any of its Subsidiaries. The
   Company has all requisite corporate power and authority to issue, sell and
   deliver the Notes in accordance with and upon the terms and conditions set
   forth in this Agreement and in the Registration Statement and Prospectus.

      (iii) The Indenture has been duly authorized, executed and delivered by
   the Company and is a valid and binding agreement of the Company, enforceable
   against the Company in accordance with its terms, except as the
   enforceability thereof may be limited by bankruptcy, insolvency,
   reorganization, moratorium or similar laws relating to or affecting
   creditors' rights generally and by general equitable principles (regardless
   of whether such enforceability is considered in a proceeding in equity or at
   law); and the Indenture has been duly qualified under the Trust Indenture Act
   and the rules and regulations thereunder.

      (iv) The Notes have been duly authorized and executed by the Company for
   issuance and sale to the Underwriters pursuant to this Agreement and,
   assuming due authentication of the Notes by the Trustee, upon delivery to the
   Underwriters against payment therefor in accordance with the terms of this
   Agreement, will have been validly issued and delivered, will be entitled to
   the benefits of the Indenture and will constitute valid and binding
   obligations of the Company, enforceable against the Company in accordance
   with their terms, except as enforcement thereof may be limited by bankruptcy,
   insolvency, reorganization, moratorium or other similar laws or judicial
   decisions relating to or affecting creditors' rights generally and by general
   equitable principles (regardless of whether such enforceability is considered
   in a proceeding in equity or at law).

      (v) Neither the execution or delivery of this Agreement nor consummation
   of the transactions contemplated hereby will result in a breach or violation
   of, or constitute a

                                       13
   14

   default under, the certificate of incorporation or by-laws of the Company,
   nor will the performance by the Company of its obligations hereunder violate
   any California or federal law, rule, administrative regulation of a type
   typically applicable to similar transactions or (to the knowledge of such
   counsel) decree (except that such counsel need not express an opinion as to
   federal or state securities or Blue Sky laws with respect to this
   subparagraph) of any court or any governmental agency or body having
   jurisdiction over the Company, its Subsidiaries or their respective
   properties. Except for permits, consents, approvals and similar
   authorizations required under the securities or Blue Sky laws of certain
   jurisdictions and except for such permits, consents, approvals and
   authorizations which have been obtained, no permit, consent, approval,
   authorization or order of any court, governmental agency or body or financial
   institution is required of the Company for the valid authorization, issuance,
   sale and delivery of the Notes.

      (vi) The Company has all necessary corporate power and authority to
   execute and deliver this Agreement and perform its obligations hereunder.
   This Agreement has been duly authorized, executed and delivered by the
   Company.

      (vii) The Registration Statement and all post-effective amendments thereto
   have become effective under the Securities Act, and, to the knowledge of such
   counsel, no stop order suspending the effectiveness of the Registration
   Statement has been issued and no proceedings for that purpose have been
   instituted or are pending before or threatened by the Commission. To the
   knowledge of such counsel, no order of the Commission directed to any
   document incorporated by reference in the Registration Statement has been
   issued, and no challenge by appropriate proceedings has been made to the
   accuracy or adequacy of any document incorporated by reference in the
   Registration Statement.

      (viii) The Registration Statement and the Prospectus and any further
   amendments or supplements thereto made by the Company, as of their respective
   effective or issue dates, complied as to form in all material respects with
   the applicable requirements of the Securities Act and the Rules and
   Regulations and the Trust Indenture Act and the rules and regulations
   thereunder (except that no opinion need be expressed as to the financial
   statements or notes thereto or other financial and statistical data contained
   therein or omitted therefrom).

      (ix) The Indenture and the Notes conform in all material respects as to
   legal matters to the respective statements concerning them contained in the
   Registration Statement and Prospectus. There are no legal proceedings
   pending or threatened against the Company or any of its Subsidiaries to
   which such counsel has given substantive attention or in which such counsel
   has been engaged to represent the Company or any of its Subsidiaries that
   are required to be disclosed in the Prospectus and are not disclosed.

      (x) The Company has an authorized capitalization as set forth in the
   Prospectus as amended or supplemented.

      (xi) The statements set forth in the Prospectus under the caption
   "Description of

                                       14
   15

   the Notes," insofar as they purport to constitute a summary of the terms of
   the Notes are correct in all material respects.

      Such opinion shall also contain a statement that in connection with such
counsel's participation in the preparation of the Registration Statement and the
Prospectus, such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained therein (except as
otherwise set forth in paragraph (xi) above), and the limitations inherent in
the examination made by such counsel and the knowledge available to such counsel
are such that such counsel is unable to assume, and does not assume, any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus. However, on the
basis of such counsel's examination and participation in conferences with
certain officers of the Company, its independent public accountants and
representatives of the Underwriters in connection with the preparation of the
Registration Statement and the Prospectus, nothing has come to such counsel's
attention that would lead it to believe that (i) the Registration Statement, at
the Effective Time, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Prospectus, on August 13, 2001,
or on the date of such opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. However, such counsel need express no belief as to the
financial statements and supporting schedules or other financial data contained
or incorporated by reference in the Registration Statement or the Prospectus.

      (e) On the Closing Date there shall have been furnished to you the opinion
(addressed to the Underwriters) of the General Counsel of the Company, dated the
Closing Date and in form and substance reasonably satisfactory to the
Underwriters, to the effect that:

      (i) Each of the Company's Significant Subsidiaries has been duly
   incorporated or formed as a corporation or partnership, as applicable, and is
   validly existing as a corporation, a general partnership or a limited
   partnership under the laws of its jurisdiction of incorporation or formation
   (and each of the Significant Subsidiaries that is a corporation or a limited
   partnership is in good standing under the laws of its jurisdiction of
   incorporation or formation), with full corporate or partnership (as
   applicable) power and authority to own, lease and operate its properties and
   conduct its business as described in the Prospectus.

      (ii) To the knowledge of such counsel, except as disclosed in the
   Prospectus, all of the outstanding shares of capital stock, partnership
   interests (or such percentage of the partnership interest as is set forth in
   the respective partnership agreements) or other ownership interests of each
   Significant Subsidiary are owned directly or indirectly by the Company, free
   and clear of any perfected security interest.

      (iii) Neither the execution or delivery of this Agreement nor consummation
   of the transactions contemplated hereby will result in a breach or violation
   of, or constitute a default under, the certificate of incorporation, by-laws,
   partnership agreement or other governing documents of the Significant
   Subsidiaries or any agreement, indenture or other instrument filed as an
   exhibit to the Registration Statement or any document incorporated by
   reference therein.

                                       15
   16

      (iv) Each document incorporated by reference in the Registration Statement
   as filed under the Exchange Act complied when so filed as to form in all
   material respects with the applicable requirements of the Exchange Act and
   the rules and regulations of the Commission thereunder (except that no
   opinion need be expressed as to the financial statements or notes thereto and
   other financial and statistical data contained therein).

      (v) The descriptions in the Registration Statement and Prospectus of
   statutes, regulations, legal or governmental proceedings, to the extent they
   constitute matters of law and summaries of legal matters are accurate in all
   material respects. To the knowledge of such counsel, there are no contracts
   or documents required to be described in the Registration Statement or
   Prospectus or to be filed as exhibits thereto which are not described or
   filed as required.

      (f) There shall have been furnished to you a certificate, dated the
Closing Date and addressed to you, signed by the Chairman of the Board or the
President or any Senior Vice President and by the Chief Financial Officer of the
Company to the effect that: (i) the representations and warranties of the
Company contained in this Agreement are true and correct, as if made at and as
of the Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be complied with or satisfied at or
prior to the Closing Date; (ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding for that purpose
has been initiated or, to the best of their knowledge, threatened; (iii) all
filings required by Rule 424(b) and Rule 430A of the Rules and Regulations have
been made; (iv) the signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments or supplements
thereto (including any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus), and do not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; (v)
since the Effective Date there has occurred no event required to be set forth in
an amendment or supplement to the Registration Statement or the Prospectus which
has not been so set forth and there has been no document required to be filed
under the Exchange Act and the Rules and Regulations that upon such filing would
be deemed to be incorporated by reference into the Prospectus that has not been
so filed and (vi) no event contemplated by subsection (g) of this Section 5 has
occurred.

      (g) Since the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and in the Prospectus (exclusive
of any supplement thereto filed subsequent to the date hereof), neither the
Company nor any of its Subsidiaries shall have sustained any loss by fire,
flood, accident or other calamity, or shall have become a party to or the
subject of any litigation, which is materially adverse to the Company and its
Subsidiaries taken as a whole, nor shall there have been a material adverse
change in the condition (financial or otherwise), results of operations,
business or prospects of the Company and its Subsidiaries taken as a whole,
regardless of whether arising in the ordinary course of business, which loss,
litigation or change, in your judgement, shall render it impractical or
inadvisable to proceed with the payment for and delivery of the Notes.

      (h) On the date hereof and the Closing Date you shall have received
letters from KPMG LLP, dated respectively the date hereof and the Closing Date
and addressed to you,

                                       16
   17

confirming that they are independent certified public accountants within the
meaning of the Securities Act and the applicable published Rules and
Regulations, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given or incorporated in the Prospectus as of
a date not more than five days prior to the date of such letter, provided that
such date shall be after the date of the Prospectus), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by its letter delivered to you concurrently with the execution
of this Agreement, and, with respect to the letter delivered on the Closing
Date, confirming the conclusions and findings set forth in such prior letter.

      (i) You shall have been furnished by the Company such additional documents
and certificates as you or counsel for the Underwriters may reasonably request.

      (j) At the time of the Closing, the Company's senior debt shall have a
rating of at least Baa3 by Moody's Investors Services, Inc. and BBB- by Standard
& Poor's Rating Services. Since the date hereof, there shall not have occurred
any downgrading with respect to any debt securities of the Company or any of its
Subsidiaries by any "nationally recognized statistical rating organization" as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading of such rating).

      All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to counsel for the Underwriters. The Company shall furnish
to you conformed copies of such opinions, certificates, letters and other
documents in such number as you shall reasonably request. If any of the
conditions specified in this Section 5 shall not have been fulfilled when and as
required by this Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date, by you. Any such cancellation shall be without liability of the
Underwriters to the Company. Notice of such cancellation shall be given to the
Company in writing, or by telegraph or telephone and confirmed in writing.

      6. Indemnification and Contribution.

      (a) The Company shall indemnify and hold harmless each Underwriter from
and against any loss, claim, damage or liability (or any action in respect
thereof), joint or several, to which such Underwriter may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage or
liability (or action in respect thereof) arises out of or is based upon (i) any
untrue statement or alleged untrue statement made by the Company in Section 1
hereof, (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented, or (iii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and shall reimburse each Underwriter promptly after receipt of
invoices from such Underwriter for any legal or other

                                       17
   18

expenses as reasonably incurred by such Underwriter in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Company shall not be liable under this
paragraph 6(a) in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriters expressly for use in the preparation of the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented.

      (b) Each Underwriter severally, but not jointly, shall indemnify and hold
harmless the Company against any loss, claim, damage or liability (or any action
in respect thereof) to which the Company may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage or liability
(or action in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented, or (ii) the
omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Registration Statement or
Prospectus as amended or supplemented a material fact required to be stated
therein or necessary to make the statements therein not misleading and shall
reimburse the Company promptly after receipt of invoices from the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that such indemnification or reimbursement shall be
available in each such case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter expressly for use therein.

      (c) Promptly after receipt by any indemnified party under subsection (a)
or (b) above of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to so notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against any indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party.

      After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the

                                       18
   19

indemnified party under subsection (a) or (b) above for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; except that the
Underwriters shall have the right to employ counsel to represent the
Underwriters who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company under
such subsection if (i) the employment thereof has been specifically authorized
by the Company in writing, (ii) the Underwriters shall have been advised by
counsel that there may be one or more legal defenses available to the
Underwriters which are different from or additional to those available to the
Company, and in the reasonable judgment of such counsel it is advisable for the
Underwriters to employ separate counsel or (iii) the Company has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the Underwriters, in which event the fees and expenses of such separate counsel
shall be paid by the Company.

      No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.

      (d) If the indemnification provided for in this Section 6 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations.

      The relative benefits received by the Company on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent,

                                       19
   20

knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this subsection (d).

      The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Notes underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint. Each
party entitled to contribution agrees that upon the service of a summons or
other initial legal process upon it in any action instituted against it in
respect to which contribution may be sought, it shall promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service
shall not relieve the party from whom contribution may be sought for any
obligation it may have hereunder or otherwise (except as specifically provided
in subsection (c) above).

      (e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have, and shall extend,
upon the same terms and conditions set forth in this Section 6, to the
respective officers and directors of the Underwriters and each person, if any,
who controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have, and shall extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Securities Act.

      7. Substitution of Underwriters. If any Underwriter defaults in its
obligation to purchase the principal amount of the Notes which it has agreed to
purchase under this Agreement, the non-defaulting Underwriters shall be
obligated to purchase (in the respective proportions which the principal amount
of the Notes set forth opposite the name of each non-defaulting Underwriter in
Schedule I hereto bears to the total principal amount of the Notes less the
principal amount of the Notes the defaulting Underwriter agreed to purchase set
forth in Schedule I hereto) the principal amount of the Notes which the
defaulting Underwriter agreed but failed to purchase; except that the
non-defaulting Underwriters shall not be obligated to purchase any of the Notes
if the total principal amount of the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of the Notes, and no non-defaulting Underwriters shall be obligated to

                                       20
   21

purchase more than 110% of the principal amount of the Notes set forth opposite
its name in Schedule I hereto. If the foregoing maximums are exceeded, the
non-defaulting Underwriters, and any other underwriters satisfactory to you who
so agree, shall have the right, but shall not be obligated, to purchase (in such
proportions as may be agreed upon among them) all of the Notes. If the
non-defaulting Underwriters or the other underwriters satisfactory to the
Underwriters do not elect to purchase the Notes that the defaulting Underwriter
or Underwriters agreed but failed to purchase within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except for the indemnity and
contribution agreements of the Company and the Underwriters contained in Section
6 hereof.

      Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If the non-defaulting
Underwriters or the other underwriters satisfactory to you are obligated or
agree to purchase the Notes of a defaulting Underwriter, either you or the
Company may postpone the Closing Date for up to seven full Business Days in
order to effect any changes that may be necessary in the Registration Statement
or the Prospectus or in any other document or agreement, and to file promptly
any amendments or any supplements to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter pursuant to this Section 7.

      8. Effective Date and Termination.

      (a) This Agreement shall become effective (i) if the Effective Date is on
or before the date of this Agreement, at 11:00 A.M., New York City time, on the
next Business Day following the date hereof, (ii) if the Effective Date is after
the date of this Agreement, at 11:00 A.M., New York City time, on the first full
Business Day following the Effective Date or (iii) at such earlier time after
the Registration Statement becomes effective as you shall first release the
Notes for sale to the public. You shall notify the Company immediately after you
have taken any action which causes this Agreement to become effective. Until
this Agreement is effective, it may be terminated by the Company by giving
notice as hereinafter provided to you, or by you by giving notice as hereinafter
provided to the Company except that the provisions of Section 4(e) and Section 6
hereof shall at all times be effective. For purposes of this Agreement, the
release of the initial public offering of the Notes for sale to the public shall
be deemed to have been made when you release, by telegram or otherwise, firm
offers of the Notes to securities dealers or release for publication a newspaper
advertisement relating to the Notes, whichever occurs first.

      (b) Until the Closing Date, this Agreement may be terminated by you by
giving notice as hereinafter provided to the Company if (i) the Company shall
have failed, refused or been unable, at or prior to the Closing Date, to perform
any agreement on its part to be performed hereunder, (ii) any other condition of
the Underwriters' obligation hereunder is not fulfilled, (iii) trading in the
Common Stock of the Company shall have been suspended by the Commission or the
NYSE, (iv) trading in securities generally on the NYSE shall have been suspended
or minimum prices shall have been established on such exchange by the Commission

                                       21
   22

or such exchange or other regulatory body or governmental authority having
jurisdiction which, in the judgment of Lehman Brothers Inc., make it inadvisable
or impractical to proceed with the offering or delivery of the Notes, or a
banking moratorium is declared by either federal or New York state authorities,
(v) the United States becomes engaged in hostilities or there is an escalation
of hostilities involving the United States or there is a declaration of a
national emergency or war by the United States which, in the judgment of Lehman
Brothers Inc., make it inadvisable or impracticable to proceed with the offering
or delivery of the Notes or (vi) there shall have been such a material adverse
change in general economic, political or financial conditions, or the effect of
international conditions on the financial markets in the United States shall be
such, as to, in the judgment of Lehman Brothers Inc., make it inadvisable or
impracticable to proceed with the offering or delivery of the Notes. Any
termination of this Agreement pursuant to this Section 8 shall be without
liability on the part of the Company or any Underwriter, except as otherwise
provided in Sections 4(e) and 6 hereof.

      Any notice referred to above may be given at the address specified in
Section 10 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.

      9. Survival of Certain Provisions. The agreements contained in Section 6
hereof and the representations, warranties and agreements of the Company
contained in Sections 1 and 4 hereof shall survive the delivery of the Notes to
the Underwriters hereunder and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.

      10. Notices. Except as otherwise provided in the Agreement, (a) whenever
notice is required by the provisions of this Agreement to be given to the
Company, such notice shall be in writing or by telegraph addressed to the
Company at 17911 Von Karman Avenue, Suite 300, Irvine, California 92614,
Attention: General Counsel; (b) whenever notice is required by the provisions of
this Agreement to be given to the several Underwriters, such notice shall be in
writing or by telegraph addressed to you in care of Lehman Brothers Inc., Three
World Financial Center, 200 Vesey Street, New York, New York 10285, Attention:
Debt Capital Markets, Financial Institutions Group, with a copy to the General
Counsel.

      11. Information Furnished by Underwriters. The Underwriters severally
confirm that the information appearing in the list of names of, and principal
amount of Notes to be purchased by, each of the Underwriters, under the caption
"Underwriting" in any Preliminary Prospectus and in the Prospectus, the
concession and reallowance figures appearing in the second paragraph under such
caption, the second sentence of the third paragraph under such caption, the
statements concerning stabilization activities appearing in the fourth, fifth,
and sixth paragraphs under such caption, and the statements concerning internet
distribution in the penultimate paragraph under such caption, constitute the
only written information furnished by or on behalf of any Underwriter referred
to in paragraph (b) of Section 1 hereof and in paragraphs (a) and (b) of Section
6 hereof.

      12. Parties. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the

                                       22
   23

representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (b) the indemnity agreement of the Underwriters contained
in Section 6 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement shall be construed to give any person,
other than the persons referred to in this paragraph, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.

      13. Definition of "Business Day" and "Subsidiary." For purposes of this
Agreement, (a) "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading, other than any day on which commercial banks
are authorized or required to be closed in New York City, and (b) "Subsidiary"
has the meaning set forth in Rule 405 of the Rules and Regulations and includes
both partnerships and corporations.

      14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.

      15. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.

      16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.

                  [Remainder of page intentionally left blank]

                                       23
   24

      Please confirm, by signing and returning to us two counterparts of this
Agreement, that you are acting on behalf of yourselves and the several
Underwriters and that the foregoing correctly sets forth the Agreement between
the Company and the several Underwriters.



                                        Very truly yours,

                                        FIDELITY NATIONAL FINANCIAL, INC.


                                        By: /s/ MARLAN WALKER
                                            ------------------------------------

                                        Name: Marlan Walker
                                              ----------------------------------

                                        Title: Executive Vice President
                                               ---------------------------------


Confirmed and accepted as of
the date first above mentioned

LEHMAN BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
BEAR STEARNS & CO. INC.


By: LEHMAN BROTHERS INC.
    AS REPRESENTATIVE OF THE UNDERWRITERS


By: /s/ MARTIN GOLDBERG
    ------------------------------------

Name: Martin Goldberg
      ----------------------------------

Title: Senior Vice President
       ---------------------------------

                                      S-1

   25

                                   SCHEDULE I



                  Underwriting Agreement dated August 13, 2001





             Underwriter                                     Principal Amount of
             -----------                                   Notes to be Purchased
                                                           ---------------------
                                                        
LEHMAN BROTHERS INC.                                                $150,000,000

BANC OF AMERICA SECURITIES LLC                                        50,000,000

BEAR STEARNS & CO. INC.                                               50,000,000
                                                                    ------------

        TOTAL                                                       $250,000,000
                                                                    ============


   26

                                    EXHIBIT A



                  Underwriting Agreement dated August 13, 2001



As used in the Underwriting Agreement, the "Significant Subsidiaries" of the
Company are as follows:


1.    Fidelity National Title Insurance Co.

2.    Fidelity National Title Insurance Co. of New York

3.    Chicago Title and Trust Company

4.    Ticor Title Insurance Company

5.    Chicago Title Insurance Company of Oregon

6.    Security Union Title Insurance Company

7.    Alamo Title Insurance

EX-4.1

   1






                                                                     EXHIBIT 4.1


   Indenture by and between Fidelity National Financial, Inc. and The Bank of
                     New York dated as of August 20, 2001






   2
                                                                     EXHIBIT 4.1

                                Table of Contents



                                                                                           Page
                                                                                           ----
                                                                                     
ARTICLE 1      DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......................1

    Section 1.1.      Definitions............................................................1

    Section 1.2.      Compliance Certificates and Opinions...................................8

    Section 1.3.      Form of Documents Delivered to Trustee.................................9

    Section 1.4.      Acts of Holders........................................................9

    Section 1.5.      Notices, etc., to Trustee and Company.................................10

    Section 1.6.      Notice to Holders; Waiver.............................................11

    Section 1.7.      Headings and Table of Contents........................................11

    Section 1.8.      Successors and Assigns................................................11

    Section 1.9.      Separability..........................................................12

    Section 1.10.     Benefits of Indenture.................................................12

    Section 1.11.     Governing Law.........................................................12

    Section 1.12.     Legal Holidays........................................................12

ARTICLE 2      SECURITY FORMS...............................................................12

    Section 2.1.      Forms Generally.......................................................12

    Section 2.2.      Form of Trustee's Certificate of Authentication.......................13

    Section 2.3.      Securities in Global Form.............................................13

    Section 2.4.      Form of Legend for Securities in Global Form..........................14

ARTICLE 3      THE SECURITIES...............................................................14

    Section 3.1.      Amount Unlimited; Issuable in Series..................................14

    Section 3.2.      Denominations.........................................................17

    Section 3.3.      Execution, Authentication, Delivery and Dating........................17

    Section 3.4.      Temporary Securities..................................................19

    Section 3.5.      Registration, Transfer and Exchange...................................19

    Section 3.6.      Replacement Securities................................................22

    Section 3.7.      Payment of Interest; Interest Rights Preserved........................23

    Section 3.8.      Persons Deemed Owners.................................................25

    Section 3.9.      Cancellation..........................................................25

    Section 3.10.     Computation of Interest...............................................25

    Section 3.11.     CUSIP Numbers.........................................................26


                                       i
   3

                                Table of Contents
                                  (continued)



                                                                                             Page
                                                                                             ----
                                                                                       
    Section 3.12.     Currency of Payment in Respect of Securities............................26

ARTICLE 4      SATISFACTION, DISCHARGE AND DEFEASANCE.........................................26

    Section 4.1.      Termination of Company's Obligations Under the Indenture................26

    Section 4.2.      Application of Trust Funds..............................................27

    Section 4.3.      Applicability of Defeasance Provisions; Company's Option to Effect .......

                      Defeasance or Covenant Defeasance.......................................27

    Section 4.4.      Defeasance..............................................................28

    Section 4.5.      Covenant Defeasance.....................................................28

    Section 4.6.      Conditions to Defeasance or Covenant Defeasance.........................28

    Section 4.7.      Deposited Money and Government Obligations to Be Held in Trust..........30

    Section 4.8.      Repayment to Company....................................................31

    Section 4.9.      Indemnity for Government Obligations....................................31

    Section 4.10.     Reinstatement...........................................................31

ARTICLE 5      DEFAULTS AND REMEDIES..........................................................31

    Section 5.1.      Events of Default.......................................................31

    Section 5.2.      Acceleration; Rescission and Annulment..................................33

    Section 5.3.      Collection of Indebtedness and Suits for Enforcement by Trustee.........34

    Section 5.4.      Trustee May File Proofs of Claim........................................34

    Section 5.5.      Trustee May Enforce Claims Without Possession of Securities or Coupons..35

    Section 5.6.      Delay or Omission Not Waiver............................................35

    Section 5.7.      Waiver of Past Defaults.................................................35

    Section 5.8.      Control by Majority.....................................................35

    Section 5.9.      Limitation on Suits by Holders..........................................36

    Section 5.10.     Rights of Holders to Receive Payment....................................36

    Section 5.11.     Application of Money Collected..........................................36

    Section 5.12.     Restoration of Rights and Remedies......................................37

    Section 5.13.     Rights and Remedies Cumulative..........................................37

    Section 5.14.     Waiver of Stay or Extension Laws........................................37

    Section 5.15.     Undertaking for Costs...................................................37


                                       ii
   4

                                Table of Contents
                                  (continued)



                                                                                           Page
                                                                                           ----
                                                                                     
ARTICLE 6      THE TRUSTEE..................................................................38

    Section 6.1.      Certain Duties and Responsibilities of the Trustee....................38

    Section 6.2.      Rights of Trustee.....................................................38

    Section 6.3.      Trustee May Hold Securities...........................................39

    Section 6.4.      Money Held in Trust...................................................39

    Section 6.5.      Trustee's Disclaimer..................................................39

    Section 6.6.      Notice of Defaults....................................................40

    Section 6.7.      Reports by Trustee to Holders.........................................40

    Section 6.8.      Securityholder Lists..................................................40

    Section 6.9.      Compensation and Indemnity............................................40

    Section 6.10.     Replacement of Trustee................................................41

    Section 6.11.     Acceptance of Appointment by Successor................................42

    Section 6.12.     Eligibility; Disqualification.........................................43

    Section 6.13.     Merger, Conversion, Consolidation or Succession to Business...........44

    Section 6.14.     Appointment of Authenticating Agent...................................44

ARTICLE 7      CONSOLIDATION, MERGER OR SALE BY THE COMPANY.................................45

    Section 7.1.      Consolidation, Merger or Sale of Assets Permitted.....................45

    Section 7.2.      Successor Person Substituted for Company..............................46

ARTICLE 8      SUPPLEMENTAL INDENTURES......................................................46

    Section 8.1.      Supplemental Indentures Without Consent of Holders....................46

    Section 8.2.      Supplemental Indentures With Consent of Holders.......................47

    Section 8.3.      Compliance with Trust Indenture Act...................................48

    Section 8.4.      Execution of Supplemental Indentures..................................48

    Section 8.5.      Effect of Supplemental Indentures.....................................48

    Section 8.6.      Reference in Securities to Supplemental Indentures....................49

ARTICLE 9      COVENANTS....................................................................49

    Section 9.1.      Payment of Principal, Premium, if any, and Interest...................49

    Section 9.2.      Maintenance of Office or Agency.......................................49

    Section 9.3.      Money for Securities Payments to Be Held in Trust; Unclaimed Money....50

    Section 9.4.      Corporate Existence...................................................51


                                      iii
   5

                                Table of Contents
                                  (continued)



                                                                                           Page
                                                                                           ----
                                                                                     
    Section 9.5.      Insurance.............................................................51

    Section 9.6.      Reports by the Company................................................51

    Section 9.7.      Annual Review Certificate; Notice of Defaults or Events of Default....52

    Section 9.8.      Limitation on Liens...................................................52

    Section 9.9.      Books of Record and Account; Compliance with Law......................53

    Section 9.10.     Taxes.................................................................54

    Section 9.11.     Additional Amounts....................................................54

    Section 9.12.     Calculation of Original Issue Discount................................54

ARTICLE 10     REDEMPTION...................................................................55

    Section 10.1.     Applicability of Article..............................................55

    Section 10.2.     Election to Redeem; Notice to Trustee.................................55

    Section 10.3.     Selection of Securities to Be Redeemed................................55

    Section 10.4.     Notice of Redemption..................................................55

    Section 10.5.     Deposit of Redemption Price...........................................56

    Section 10.6.     Securities Payable on Redemption Date.................................57

    Section 10.7.     Securities Redeemed in Part...........................................57

ARTICLE 11     SINKING FUNDS................................................................58

    Section 11.1.     Applicability of Article..............................................58

    Section 11.2.     Satisfaction of Sinking Fund Payments with Securities.................58

    Section 11.3.     Redemption of Securities for Sinking Fund.............................58


                                       iv
   6

            INDENTURE, dated as of August 20, 2001, between Fidelity National
Financial, Inc., a Delaware corporation (the "Company") and The Bank of New
York, a New York banking corporation (the "Trustee").

                                    RECITALS

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

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

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

                                    ARTICLE 1

             DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

      Section 1.1. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:

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

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

                  (3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and

                  (4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.

            "Act" shall have the meaning set forth in Section 1.4(a).

            "Additional Amounts" means any additional amounts which, pursuant to
Section 3.1(b)(18), are required by the terms of the Securities of any series,
under circumstances specified pursuant to Section 3.1(b)(18), to be paid by the
Company in respect of certain Securities of such series specified pursuant to
Section 3.1(b)(18).

            "Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.

   7

            "Agent" means any Paying Agent or Registrar.

            "Authenticating Agent" means any authenticating agent appointed by
the Trustee pursuant to Section 6.14.

            "Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.

            "Bankruptcy Law" shall have the meaning set forth in Section 5.1.

            "Bearer Security" means any Security issued hereunder which is
payable to bearer.

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

            "Board Resolution" means a copy of a resolution of the Board of
Directors, 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 the certificate, and delivered to the Trustee.

            "Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.

            "Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution 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 at such time.

            "Company" means the party named as the Company in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.

            "Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, the Controller or any Vice President of
the Company.

            "Consolidated Net Tangible Assets" means, with respect to the
Company as at any date, the total assets of the Company and its consolidated
Subsidiaries determined in accordance with GAAP as they appear on the most
recently prepared consolidated balance sheet of the Company as of the end of a
fiscal quarter, less (i) all liabilities shown on such consolidated balance
sheet that are classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and (ii) all
assets shown on such consolidated balance sheet that are classified and
accounted for as intangible

                                       2
   8

assets or that otherwise would be considered intangible assets under GAAP,
including, without limitation, franchises, patents and patent applications,
trademarks, brand names and goodwill.

            "Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which issued
such Foreign Currency and, for the settlement of transactions, by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.

            "Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 101 Barclay Street.
21W, New York, New York, 10286, Attention: Corporate Trust Administration.

            "Currency" means Dollars or any Foreign Currency.

            "Custodian" shall have the meaning set forth in Section 5.1.

            "Debt" means indebtedness for borrowed money or evidenced by bonds,
notes, debentures or other similar instruments.

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

            "Defaulted Interest" shall have the meaning set forth in Section
3.7(b).

            "Depository" when used with respect to the Securities of or within
any series issuable or issued in whole or in part in global form, means the
Person designated as Depository by the Company pursuant to Section 3.1 and its
successors in such capacity, and if at any time there is more than one such
Person, shall be a collective reference to such Persons.

            "Dollar" and "$" mean the currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.

            "ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Community.

            "European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.

            "European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.

            "Event of Default" shall have the meaning set forth in Section 5.1.

            "Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, 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.

                                       3
   9

            "Funded Debt" means Debt of the Company or any of its Subsidiaries
which, under GAAP, would appear as indebtedness on the most recent consolidated
balance sheet of the Company, which matures by its terms more than 12 months
from the date of such consolidated balance sheet or which matures by its terms
in less than 12 months but by its terms is renewable or extendible beyond 12
months from the date of such consolidated balance sheet at the option of the
borrower.

            "GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.

            "Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on the relevant Security shall be
payable, in each case where the payment or payments thereunder are supported by
the full faith and credit of such government or governments or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.

            "Holder" means, with respect to a Bearer Security, a bearer thereof
or of a coupon appertaining thereto and, with respect to a Registered Security,
a person in whose name a Security is registered on the Register. "Indenture"
means this Indenture as originally executed or as amended or supplemented from
time to time and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.

            "Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.

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

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

            "Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of any
nature whatsoever.

                                       4
   10

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

            "Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of the Company.

            "Officers' Certificate", when used with respect to the Company,
means a certificate signed by two Officers, one of whom must be the Chairman of
the Board, the President, the Chief Financial Officer, the Treasurer, an
Assistant Treasurer, the Controller or a Vice President of the Company.

            "Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel. Such counsel may be an employee
of or counsel to the Company.

            "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 5.2.

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

                  (i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;

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

                  (iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and

                  (iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;

provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act,

                                       5
   11

(a) the principal amount of any Original Issue Discount Securities that may be
counted in making such determination or calculation and that shall be deemed to
be Outstanding for such purpose shall be equal to the amount of principal
thereof that would be (or shall have been declared to be) due and payable, at
the time of such determination, upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.2, (b) the principal amount of any
Indexed Security that may be counted in making such determination and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
in or pursuant to this Indenture, (c) the principal amount of a Security
denominated in a Foreign Currency shall be the Dollar equivalent, determined on
the date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent on the
date of original issuance of such Security of the amount determined as provided
in (a) above) of such Security, and (d) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.

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

            "Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.

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

            "Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest on such Securities are payable as specified or contemplated by
Sections 3.1 and 9.2.

            "Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.

            "Principal amount", when used with respect to any Security, means
the amount of principal, if any, payable in respect thereof at Maturity;
provided, however, that when used with respect to an Indexed Security in any
context other than the making of payments at Maturity, "principal amount" means
the principal face amount of such Indexed Security at original issuance.

                                       6
   12

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

            "Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.

            "Register" shall have the meaning set forth in Section 3.5.

            "Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.

            "Registrar" shall have the meaning set forth in Section 3.5.

            "Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.

            "Responsible Officer", when used with respect to the Trustee, shall
mean any vice president, any assistant vice president, any senior trust officer,
any trust officer, or any officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject and who
shall have direct responsibility for the administration of this Indenture.

            "Restricted Subsidiary" means any Subsidiary of the Company which
(i) owns or leases a Principal Property and (ii) (A) substantially all of the
property of which is located, or substantially all of the business of which is
carried on, within the United States of America or (B) which is incorporated or
organized under the laws of any state of the United States of America or the
District of Columbia.

            "Secured Debt" shall have the meaning set forth in Section 9.8(a).

            "Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.

            "Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.

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

            "Subsidiary" means (i) any corporation, at least a majority of the
total voting power of whose outstanding Voting Stock is at the date of
determination owned, directly or indirectly, by the Company and/or one or more
other Subsidiaries of the Company, and (ii) any Person (other than a
corporation) in which the Company and/or one or more other Subsidiaries of the
Company own, directly or indirectly, at the date of determination, at least a
majority ownership interest.

                                       7
   13

            "Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.

            "Trustee" means the party named as such in the first paragraph of
this Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.

            "United States" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 3.1, the United States
of America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.

            "United States Alien", except as otherwise provided with respect to
the Securities of any series as contemplated by Section 3.1, means any Person
who, for United States Federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which
is, for United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.

            "U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, any estate the income of
which is subject to United States federal income taxation regardless of its
source, or any trust whose administration is subject to the primary supervision
of a United States court and which has one or more United States fiduciaries who
have the authority to control all substantial decisions of the trust.

            "Voting Stock" means, with respect to any corporation, securities of
any class or series of such corporation, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of directors of
the corporation.

      Section 1.2. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, 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, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.

      Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to Sections 2.3
and 9.7 and the last paragraph of Section 3.3) shall include:

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

                                       8
   14

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

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

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

      Section 1.3. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.

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

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

      Section 1.4. Acts of Holders.

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

            (b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where

                                       9
   15

such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.

            (c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.

            (d) The ownership of Registered Securities shall be proved by the
Register.

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

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

      Section 1.5. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,

            (1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and sent by facsimile (with confirmation of receipt), overnight delivery
service or mailed, first-class postage prepaid, to the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or

                                       10
   16

            (2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and sent by facsimile (with confirmation of receipt), overnight delivery
service or mailed, first-class postage prepaid, to the Company addressed to it
at Fidelity National Financial, Inc., 17911 Von Karman Avenue, Suite 300,
Irvine, California 92614, Attention: Chief Financial Officer or at any other
address previously furnished in writing to the Trustee by the Company.

      Section 1.6. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, (i) if any of the Securities affected by such
event are Registered Securities, such notice to the Holders thereof shall be
sufficiently given (unless otherwise herein or in the terms of such Registered
Security expressly provided) if in writing and sent by overnight delivery
service or mailed, first-class postage prepaid, to each such Holder affected by
such event, at his address as it appears in the Register, within the time
prescribed for the giving of such notice, and (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. 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 of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders by
publication, neither the failure to publish such notice, nor any defect in any
notice so published, shall affect the sufficiency of such notice with respect to
other Holders of Bearer Securities or the sufficiency of any notice to Holders
of Registered Securities given as provided herein. Any notice mailed to a Holder
in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.

            If by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice as provided
above, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.

            Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication. 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 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.

      Section 1.7. Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.

      Section 1.8. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successor and assigns, whether so
expressed or not.

                                       11
   17

      Section 1.9. Separability. In case any provision of this Indenture or the
Securities shall be invalid, illegal or unenforceable, then, to the extent
permitted by applicable law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.

      Section 1.10. Benefits of Indenture. Nothing in this Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.

      Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Indenture is subject to
the Trust Indenture Act and if any provision hereof limits, qualifies or
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.

      Section 1.12. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such date;
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.


                                    ARTICLE 2

                                 SECURITY FORMS

      Section 2.1. Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. Unless otherwise provided as contemplated in Section 3.1,
Securities will be issued only in registered form without coupons or in the form
of one or more global securities. If temporary Securities of any series are
issued as permitted by Section 3.4, the form thereof also shall be established
as provided in the preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by, or by action taken pursuant to, a
Board Resolution, a copy of the Board Resolution together with an appropriate
record (which may be in the form of an Officers' Certificate) of any such action
taken pursuant thereto, including a copy of the approved form of Securities or
coupons, if any, shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery of
such Securities.

                                       12
   18

      Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.

      The definitive Securities and coupons, if any, 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 and
coupons, if any, as evidenced by their execution of such Securities and coupons,
if any.

      Section 2.2. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:

      This is one of the Securities of the series described in the
within-mentioned Indenture.

                                        Dated:


                                        THE BANK OF NEW YORK
                                        as Trustee

                                        By
                                           -------------------------------------
                                                   Authorized Signatory

      Section 2.3. 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 or specified 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 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 pursuant to Section 3.1 or in the Company Order to be delivered to
the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section
3.3 and, if applicable, Section 3.4, 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 pursuant to Section 3.1 or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Opinion of Counsel.

      The provisions of the last paragraph of Section 3.3 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 1.2 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 3.3.

      Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
Person or Persons specified therein.

                                       13
   19

      Section 2.4. Form of Legend for Securities in Global Form. Any Security in
global form authenticated and delivered hereunder shall bear a legend in
substantially the following form and such other legends as may be approved by
the officers executing such Security, as evidenced by their execution thereof:

      This Security is in global form within the meaning of the Indenture
      hereinafter referred to and is registered in the name of a Depository or a
      nominee of a Depository. Unless and until it is exchanged in whole or in
      part for Securities in certificated form, this Security may not be
      transferred except as a whole by the Depository to a nominee of the
      Depository or by a nominee of the Depository to the Depository or another
      nominee of the Depository or by the Depository or any such nominee to a
      successor Depository or a nominee of such successor Depository.


                                    ARTICLE 3

                                 THE SECURITIES

      Section 3.1. Amount Unlimited; Issuable in Series.

            (a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series.

            (b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:

                  (1) the title of the Securities of the series, including CUSIP
Numbers (which title shall distinguish the Securities of the series from all
other series of Securities);

                  (2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (which limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7
or upon the Company's repurchase of any Securities in part at the option of the
Holders thereof);

                  (3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;

                  (4) the rate or rates (which may be fixed, variable or zero)
at which the Securities of the series shall bear interest, if any, or the method
of calculating such rate or rates of interest;

                  (5) the date or dates from which interest, if any, shall
accrue or the method by which such date or dates shall be determined;

                  (6) the Interest Payment Dates on which any such interest, if
any, shall be payable and, with respect to Registered Securities, the Regular
Record Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date;

                                       14
   20

                  (7) each Place of Payment for the Securities of the series;

                  (8) the period or periods within which, the price or prices at
which, the currency (if other than Dollars) in which, and the other terms and
conditions upon which, Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than as provided in Section
10.3, the manner in which the particular Securities of such series (if less than
all Securities of such series are to be redeemed) are to be selected for
redemption;

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

                  (10) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the denomination
of $5,000, if Bearer Securities, the denominations in which Securities of the
series shall be issuable;

                  (11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the Securities of the
series shall be denominated and/or the currency in which the principal of,
premium, if any, and interest, if any, on the Securities of the series shall be
payable and the particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of this Indenture;

                  (12) if the amount of payments of principal of, or premium, if
any, or interest, if any, on the Securities of the series shall be determined
with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies (including
currency unit or units) other than that in which the Securities of the series
are denominated or designated to be payable), the index, formula or other method
by which such amount shall be determined;

                  (13) if the amount of payments of principal, premium, if any,
or interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method based on the prices of securities
or commodities, with reference to changes in the prices of securities or
commodities or otherwise by application of a formula, the index, formula or
other method by which such amount shall be determined;

                  (14) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;

                  (15) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be payable and
the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;

                  (16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as may be
specified;

                                       15
   21

                  (17) any addition to or modification or deletion of any Events
of Default or any covenants of the Company pertaining to the Securities of the
series;

                  (18) under what circumstances, if any, the Company will pay
Additional Amounts on the Securities of that series held by a Person who is not
a U.S. Person in respect of taxes, assessments or similar governmental charges
withheld or deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);

                  (19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale or delivery of
Bearer Securities and, if other than as provided in Section 3.5, the terms upon
which Bearer Securities of a series may be exchanged for Registered Securities
of the same series and vice versa;

                  (20) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;

                  (21) the forms of the Securities and coupons, if any, of the
series;

                  (22) if either or both of Section 4.4 relating to defeasance
or Section 4.5 relating to covenant defeasance shall not be applicable to the
Securities of such series, or, if such defeasance or covenant defeasance shall
be applicable to the Securities of such series, any covenants in addition to
those specified in Section 4.5 relating to the Securities of such series which
shall be subject to covenant defeasance and any deletions from, or modifications
or additions to, the provisions of Article 4 in respect of the Securities of
such series or such other means of defeasance or covenant defeasance as may be
specified for the Securities of such series;

                  (23) if other than the Trustee, the identity of the Registrar
and any Paying Agent;

                  (24) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depository for such global Securities, (ii)
whether beneficial owners of interests in any Securities of the series in global
form may exchange such interests for certificated Securities of such series and
of like tenor of any authorized form and denomination, and (iii) if other than
as provided in Section 3.5, the circumstances under which any such exchange may
occur; and

                  (25) any other terms of the Securities of such series and any
deletions from or modifications or additions to this Indenture in respect of
such Securities.

            (c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in the related Officers' Certificate or (iii)
in an indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.

                                       16
   22

            (d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.

      Section 3.2. Denominations. Unless otherwise provided as contemplated by
Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in denominations of $5,000.

      Section 3.3. Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by two Officers. The Company's seal
shall be reproduced on the Securities. The signatures of any of these Officers
on the Securities may be manual or facsimile. The coupons, if any, of Bearer
Securities shall bear the facsimile signature of two Officers.

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

            At any time and from time to time, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series.

            If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, 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 Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,

                  (1) if the forms of such Securities and any coupons have been

      established by or pursuant to a Board Resolution as permitted by Section
      2.1, that such forms have been established in conformity with the
      provisions of this Indenture;

                  (2) if the terms of such Securities and any coupons have been
      established by or pursuant to a Board Resolution as permitted by Section
      3.1, that such terms have been, or in the case of Securities of a series
      offered in a Periodic Offering, will be, established in conformity with
      the provisions of this Indenture, subject in the case of Securities
      offered in a Periodic Offering, to any conditions specified in such
      Opinion of Counsel; and

                                       17
   23

                  (3) that such Securities together with any coupons

      appertaining thereto, 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 legally
      binding obligations of the Company, enforceable in accordance with their
      terms, subject to bankruptcy, insolvency, fraudulent transfer,
      reorganization, moratorium and other similar laws of general applicability
      relating to or affecting the enforcement of creditors' rights and to
      general equity principles.

Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) reasonably acceptable to the Company, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.

            Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.

            With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.

            If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend contemplated by Section 2.4.

            Each Depository designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934 or any successor thereto (if so required by
applicable law or regulation) and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depository is so
registered.

            Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.1.

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   24

            No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.

            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 3.9 together with a written statement (which need not comply
with Section 1.2 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 not be entitled to the benefits
of this Indenture.

      Section 3.4. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and, upon Company Order, the
Trustee shall authenticate and deliver temporary Securities of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form, with or
without coupons, of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.

            Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the Person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in or pursuant to the Board Resolutions relating thereto and such
delivery shall occur only outside the United States. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series except as
otherwise specified as contemplated by Section 3.1.

      Section 3.5. Registration, Transfer and Exchange. The Company shall cause
to be kept at the Corporate Trust Office of the Trustee or in any office or
agency to be maintained by the Company in accordance with Section 9.2 in a Place
of Payment a register (the "Register") in which,

                                       19
   25

subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the registration of
transfers of Registered Securities. The Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.

            Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that 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 Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.

            Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.

            At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified as contemplated by
Section 3.1, Bearer Securities may not be issued in exchange for Registered
Securities.

            Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 9.2, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such coupon is so surrendered with such Bearer Security, such coupon
shall be returned to the person so

                                       20
   26

surrendering the Bearer Security), and interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon, when due in accordance with the provisions of this Indenture.

            Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive
certificated form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depository for such series to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for such series or
a nominee of such successor Depository.

            Unless otherwise specified pursuant to Section 3.1 with respect to
the Securities of any series, a Security in global form will be exchangeable for
certificated Securities of the same series in definitive form only if (i) the
Depository for the Global Securities of such series notifies the Company that it
is unwilling or unable to continue as Depository for the global Securities of
such series or such Depository ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, or any successor thereto
if so required by applicable law or regulation and, in either case, a successor
Depository for such Securities shall not have been appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, as the case may be, (ii) the Company, in its sole discretion,
determines that such Securities in global form shall be exchangeable for
certificated Securities and executes and delivers to the Trustee a Company Order
to the effect that such global Securities shall be so exchangeable, or (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities of such series, the Company's election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the Securities of such
series and the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of certificated Securities of such
series of like tenor and terms, shall authenticate and deliver, without charge,
Securities of such series of like tenor and terms in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor and
terms in global form in exchange for such Security or Securities in global form.
Upon any such exchange, owners of beneficial interests in such Securities in
global form will be entitled to physical delivery of individual Securities in
certificated form of like tenor and terms equal in principal amount to such
beneficial interests, and to have such Securities in certificated form
registered in the names of the beneficial owners.

            If specified by the Company pursuant to Section 3.1 with respect to
a series of Securities, the Depository for such series may surrender a Security
in global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,

                  (i) to each Person specified by such Depository a new
certificated Security or Securities of the same series of like tenor and terms,
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial interest
in the Security in global form; and

                  (ii) to such Depository a new Security in global form of like
tenor and terms in a denomination equal to the difference, if any, between the
principal amount

                                       21
   27

of the surrendered Security in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.

            Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.

            Whenever any Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.

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

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

            No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 8.6, or 10.7 or upon the Company's
repurchase of any Securities in part at the option of the Holder thereof not
involving any transfer.

            The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.

      Section 3.6. Replacement Securities. If a mutilated Security or a Security
with a mutilated coupon appertaining to it is surrendered to the Trustee,
together with, in proper cases, such security or indemnity as may be required by
the Company or the Trustee to save each of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver a replacement Registered
Security, if such surrendered Security was a Registered Security, or a
replacement Bearer Security with coupons corresponding to the coupons
appertaining to the

                                       22
   28

surrendered Security, if such surrendered Security was a Bearer Security, of the
same series, terms and date of maturity, if the Trustee's requirements are met.

            If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security, if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
the destroyed, lost or stolen Security.

            In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.

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

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

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

      Section 3.7.  Payment of Interest; Interest Rights Preserved.

            (a) Unless otherwise provided as contemplated by Section 3.1,
interest, if any, on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
at the

                                       23
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office or agency maintained for such purpose pursuant to 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Persons entitled thereto as they shall appear on the Register of Holders of
Securities of such series or (ii) by transfer to an account maintained by the
Persons entitled thereto.

            Unless otherwise provided as contemplated by Section 3.1 and except
as otherwise provided in Section 9.2, (i) interest, if any, on Bearer Securities
shall be paid only against presentation and surrender of the coupons for such
interest installments as are evidenced thereby as they mature and (ii) original
issue discount, if any, on Bearer Securities shall be paid only against
presentation and surrender of such Securities, in either case at the office of a
Paying Agent located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing, provided that any such instruction
for payment in the United States does not cause any Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations. The interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a coupon attached thereto
only upon presentation and surrender of such coupon and, as to other
installments of interest, only upon presentation of such Security for notation
thereon of the payment of such interest.

            (b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Registered Securities of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holders
on the relevant Regular Record Date by virtue of their having been such Holders,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:

                  (1) The Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered 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 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 (1) provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of such Registered Securities at his address as it appears in the
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 so mailed, such Defaulted Interest shall be paid to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).

                  (2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a specified
date in any other lawful manner not inconsistent

                                       24
   30

with the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2), such manner of payment shall be deemed
practicable by the Trustee.

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

      Section 3.8. Persons Deemed Owners. Prior to due presentment of any
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.

            The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.

            None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.

      Section 3.9. Cancellation. The Company at any time may deliver Securities
and coupons to the Trustee for cancellation. The Registrar and any Paying Agent
shall forward to the Trustee any Securities and coupons surrendered to them for
replacement, for registration of transfer, or for exchange or payment. The
Trustee shall cancel all Securities and coupons surrendered for replacement, for
registration of transfer, or for exchange, payment, redemption or cancellation
and shall dispose of such canceled Securities in its customary manner. The
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.

      Section 3.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.

                                       25
   31

      Section 3.11. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, in such case, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
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 shall
promptly advise the Trustee of any change in the CUSIP Numbers.

      Section 3.12. Currency of Payment in Respect of Securities. Unless
otherwise specified with respect to any Securities pursuant to Section 3.1,
payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in Dollars.


                                    ARTICLE 4

                     SATISFACTION, DISCHARGE AND DEFEASANCE

      Section 4.1. Termination of Company's Obligations Under the Indenture.
This Indenture shall upon a Company Request cease to be of further effect with
respect to Securities of any series and any coupons appertaining thereto (except
as specified below) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any coupons appertaining thereto
when

      (1) either

                  (A) all such Securities previously authenticated and delivered
and all coupons appertaining thereto (other than (i) such coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has been
waived as provided in Section 3.5, (ii) such Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.6, (iii) such coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date, surrender of which
has been waived as provided in Section 10.6 and (iv) such Securities and coupons
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 9.3) have been delivered to
the Trustee for cancellation; or

                  (B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation

      (i) have become due and payable, or

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

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

                                       26
   32

and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, in respect of principal, premium, if any, and interest, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;

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

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

Notwithstanding the satisfaction and discharge of this Indenture with respect to
the Securities of any series, the obligation of the Company to the Trustee and
any predecessor Trustee under Section 6.9, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of
such series under Sections 3.4, 3.5, 3.6, 4.2, 9.2 and 9.3 and with respect to
the payment of Additional Amounts, if any, with respect to such Securities as
contemplated by Section 3.1(b)(18) shall survive such satisfaction and
discharge.

      Section 4.2. Application of Trust Funds. Subject to the provisions of the
last paragraph of Section 9.3, all money deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto as specifically provided herein, of the principal, premium, if any, and
interest for whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except to the
extent required by law.

      Section 4.3. Applicability of Defeasance Provisions; Company's Option to
Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 3.1 either
or both of (i) defeasance of the Securities of or within a series under Section
4.4 or (ii) covenant defeasance of the Securities of or within a series under
Section 4.5 shall not be applicable with respect to the Securities of any
series, then the provisions of such Section or Sections, as the case may be,
together with the provisions of Sections 4.6 through 4.10 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1 with respect
to such Securities, shall be applicable to such Securities and any coupons
appertaining thereto, and the Company may at its option by Board Resolution, at
any time, with respect to such Securities and any coupons appertaining thereto,
elect to have Section 4.4 or Section 4.5 (unless such Section 4.4 or Section
4.5, as the case may be, shall not be applicable to the Securities of such
series) be applied to such Outstanding Securities and any coupons appertaining
thereto upon compliance with the conditions set forth below in this Article.
Unless otherwise specified pursuant to Section 3.1, the Company's right, if any,
to effect defeasance pursuant to Section 4.4 or covenant defeasance pursuant to
Section 4.5 may only be exercised with respect to all of the Outstanding
Securities of a series and any coupons appertaining thereto.

                                       27
   33

      Section 4.4. Defeasance. Upon the Company's exercise of the option
specified in Section 4.3 applicable to this Section with respect to the
Securities of a series, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities and any coupons appertaining
thereto (except as specified below) on the date the conditions set forth in
Section 4.6 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall on Company
Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining thereto to
receive, solely from the trust funds described in Section 4.6(a) and as more
fully set forth in such Section and in Section 4.7, payments in respect of the
principal of, premium, if any, and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due; (ii) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2
and 9.3 and with respect to the payment of Additional Amounts, if any, payable
with respect to such Securities as specified pursuant to Section 3.1(b)(18);
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Article 4. Subject to compliance with this Article 4, the Company
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 4.5 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.

      Section 4.5. Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of a series, the Company shall be released from its obligations under
Sections 7.1, 9.4 (other than the Company's obligation to maintain its corporate
existence), 9.5, 9.8, 9.9 and 9.10 and, if specified pursuant to Section 3.1,
its obligations under any other covenant, with respect to such Securities and
any coupons appertaining thereto on and after the date the conditions set forth
in Section 4.6 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 7.1, 9.4 (other than the Company's obligation to
maintain its corporate existence), 9.5, 9.8, 9.9 and 9.10 and any such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, the Company 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 a Default or an Event of Default
under Section 5.1(3) or 5.1(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.

      Section 4.6. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:

                                       28
   34

            (a) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.12 who shall agree in writing to comply with, and shall be entitled to
the benefits of, the provisions of Sections 4.3 through 4.10 inclusive and the
last paragraph of Section 9.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in an amount (in such currency
in which such Securities and any coupons appertaining thereto are then specified
as payable at Stated Maturity or, if such defeasance or covenant defeasance is
to be effected in compliance with Section 4.6(g) below, on the relevant
Redemption Date, as the case may be), or (B) if Securities of such series are
not subject to repayment or repurchase at the option of Holders, Government
Obligations applicable to such Securities and any coupons appertaining thereto
(determined on the basis of the currency in which such Securities and coupons,
if any, are then specified as payable at Stated Maturity or the applicable
Redemption Date, as the case may be) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
(without consideration of any reinvestment of such principal and interest), not
later than one day before the due date of any payment referred to in clause (x)
or (y) of this Section 4.6(a), money in an amount or (C) a combination thereof
in an amount, sufficient, in the opinion of any of the firms of independent
certified public accountants listed in the last sentence of this clause (a),
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
(x) the principal of, and premium, if any, and interest, if any, on such
Securities and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest or on the applicable
Redemption Date, as the case may be, and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities and
any coupons appertaining thereto. Any of Arthur Andersen, Deloitte & Touche,
Ernst & Young, KPMG or PricewaterhouseCoopers shall issue the opinion and
written certification called for above.

            (b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Company is a party or by
which it is bound.

            (c) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of 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
Securities and any coupons appertaining thereto 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.

            (d) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any coupons appertaining thereto 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.

                                       29
   35

            (e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance under
Section 4.5 (as the case may be) have been complied with.

            (f) No Event of Default or Default with respect to such Securities
or any coupons appertaining thereto shall have occurred and be continuing on the
date of such deposit, or, insofar as Defaults in Events of Default under
Sections 5.1(5) and 5.1(6) are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).

            (g) If the monies or Government Obligations or combination thereof,
as the case may be, deposited under Section 4.6(a) above are sufficient to pay
the principal of, and premium, if any, and interest, if any, on such Securities
and coupons, if any, appertaining thereto provided such Securities are redeemed
on a particular Redemption Date, the Company shall have given the Trustee
irrevocable instructions to redeem such Securities on such date and to provide
notice of such redemption to Holders as provided in or pursuant to this
Indenture.

            (h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.

      Section 4.7. Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (other than the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.

            Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 4.6(a) 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 4.6(a) 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 4.6(a) has been made, the indebtedness represented by such Security and
any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of and
premium, if any, and interest, if any, on 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 monies or Government Obligations (or other
property and any proceeds therefrom) 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 Foreign Currency in
effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market

                                       30
   36

exchange rate for such Foreign Currency in effect (as nearly as feasible) at the
time of the Conversion Event.

      Section 4.8. Repayment to Company. Anything in this Article 4 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 4.6(a)
with respect to the Securities of any series which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, of such Securities in
accordance with Section 4.6.

      Section 4.9. Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received on such Government Obligations.

      Section 4.10. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any monies or Government Obligations (or other property or any
proceeds therefrom) deposited pursuant to Section 4.6(a) in accordance with this
Indenture or the Securities of the applicable series 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, then
the Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 4.6(a) until such time as the Trustee or a Paying Agent is permitted to
apply such monies or Government Obligations (or other property or any proceeds
therefrom) in accordance with this Indenture and the Securities of such series;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the cash and
Government Obligations(or other property or any proceeds therefrom) held by the
Trustee or Paying Agent.


                                    ARTICLE 5

                              DEFAULTS AND REMEDIES

      Section 5.1. Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, Board Resolution or
Officers' Certificate establishing the terms of such series pursuant to Section
3.1 of this Indenture:

            (1) default in the payment of any interest on any Security of that
series or any coupon appertaining thereto, or any Additional Amounts payable
with respect to any Security of that series, when the same becomes due and
payable and continuance of such default for a period of 30 days; or

                                       31
   37

            (2) default in the payment of any principal of or premium, if any,
on any Security of that series when the same becomes due and payable at its
Maturity (whether at Stated Maturity, upon redemption, repurchase at the option
of the Holder or otherwise), or default in the making of any mandatory sinking
fund payment in respect of any Securities of that series when and as due by the
terms of the Securities of that series; or

            (3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of such series (other
than a covenant or warranty for which the consequences of breach or
nonperformance are addressed elsewhere in this Section 5.1 or a covenant or
warranty which has expressly been included in this Indenture, whether or not by
means of a supplemental indenture, solely for the benefit of Securities of a
series other than such series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
such series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or

            (4) default under any bond, note, debenture or other evidence of
Debt of the Company (including an event of default with respect to any other
series of Securities), or under any mortgage, indenture or other instrument
under which there may be issued or by which there may be secured or evidenced
any Debt of the Company, whether such Debt exists on the date of this Indenture
or shall hereafter be incurred or created, which results in such Debt in an
aggregate principal amount exceeding $20,000,000 becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, and such acceleration shall not be rescinded or annulled or such Debt
shall not be paid in full, or there has not been deposited into trust a sum of
money sufficient to pay in full such Debt, within a period of 30 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of such series a
written notice specifying such default and requiring the Company to cause such
acceleration to be rescinded or annulled or to pay in full such Debt or to
deposit into trust a sum of money sufficient to pay in full such Debt and
stating that such notice is a "Notice of Default" hereunder; or

            (5) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case or proceeding, (B) consents to the entry of
an order for relief against it in an involuntary case or proceeding or to the
commencement of any bankruptcy or insolvency case or proceeding against it, (C)
consents to the appointment of a Custodian of it or for all or substantially all
of its property; or (D) makes a general assignment for the benefit of its
creditors; or

            (6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, (C) orders the winding up or liquidation of
the Company , (D) adjudges the Company a bankrupt or insolvent or (E) approves
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect to the Company; and any such order or decree
described in this clause (6) remains unstayed and in effect for 60 days; or

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            (7) any other Event of Default provided as contemplated by Section
3.1 with respect to Securities of that series.

         The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.

      Section 5.2. Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of such series,
by written notice to the Company (and, if given by the Holders, to the Trustee),
may declare the principal of (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) and accrued interest, if
any, on all the Securities of that series to be due and payable and upon any
such declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) and interest, if any,
shall be immediately due and payable.

         At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if:

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

                  (i) all overdue installments of interest on any Securities of
such series and any coupons appertaining thereto which have become due otherwise
than by such declaration of acceleration and any Additional Amounts with respect
thereto,

                  (ii) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto and, to the extent
permitted by applicable law, interest thereon at the rate or rates borne by or
provided for in such Securities,

                  (iii) to the extent permitted by applicable law, interest upon
installments of interest, if any, which have become due otherwise than by such
declaration of acceleration and any Additional Amounts with respect thereto at
the rate or rates borne by or provided for in such Securities, and

                  (iv) all sums paid or advanced by the Trustee hereunder and
the compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due the Trustee under Section 6.9; and

            (2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, and interest on, and any
Additional Amounts with respect to, Securities of such series which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 5.7.

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   39

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

      Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if

            (1) default is made in the payment of any interest on any Security
or coupon, if any, or any Additional Amounts with respect to any Security when
the same becomes due and payable and such default continues for a period of 30
days; or

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

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

            If the Company fails to pay the money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and any coupons appertaining thereto and collect the monies adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities and any coupons appertaining thereto,
wherever situated.

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

      Section 5.4. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of any overdue
principal, premium, interest or Additional Amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise,

            (a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the principal
and any premium, interest and Additional Amounts owing and unpaid in respect of
such Securities and any coupons appertaining

                                       34
   40
thereto and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any coupons
allowed in such judicial proceeding, and

            (b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;

and any Custodian in any such judicial proceeding is hereby authorized by each
Holder of Securities or any coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities or any coupons, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and any other amounts due the Trustee
under Section 6.9.

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

      Section 5.5. Trustee May Enforce Claims Without Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or coupon in respect of which such judgment has been recovered.

      Section 5.6. Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall, to the extent permitted by applicable law,
impair any such right or remedy or constitute a waiver of or acquiescence in any
such Event of Default. Every right and remedy given by this Article 5 or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustees or by the Holders of
Securities or coupons, as the case may be.

      Section 5.7. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series by
written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series any past Default or Event of Default with respect to
that series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, or premium, if any, or interest on, or Additional
Amounts, if any, with respect to, any Security of such series or any coupon
appertaining thereto or (ii) in respect of a covenant or provision hereof which
pursuant to Section 8.2 cannot be amended or modified without the consent of the
Holder of each Outstanding Security of such series affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture.

      Section 5.8. Control by Majority. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and

                                       35
   41

place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it with respect to Securities of that
series; provided, however, that (i) the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, (ii) the Trustee may refuse
to follow any direction that is unduly prejudicial to the rights of the Holders
of Securities of such series not consenting or that would in the good faith
judgment of the Trustee have a substantial likelihood of involving the Trustee
in personal liability and (iii) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.

      Section 5.9. Limitation on Suits by Holders. No Holder of any Security
of any series or any coupons appertaining thereto shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:

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

            (2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series have made a written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;

            (3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;

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

            (5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series have not
given to the Trustee a direction inconsistent with such written request.

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

      Section 5.10. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the Holder of any Security or coupon shall
have the right, which is absolute and unconditional, to receive payment of the
principal of, and premium, if any, and, subject to Sections 3.5 and 3.7,
interest on, and Additional Amounts, if any, with respect to, such Security and
such coupon on the respective due dates expressed in such Security or coupon
(or, in case of redemption, on the Redemption Date or, in the case of repurchase
by the Company at the option of such Holder, on any date such repurchase is due
to be made), and to institute suit for the enforcement of any such payment, and
such right, shall not be impaired or affected without the consent of such
Holder.

      Section 5.11. Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or

                                       36
   42

interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:

            FIRST: to the Trustee for amounts due under Section 6.9;

            SECOND: to Holders of Securities and coupons in respect of which or
for the benefit of which such money has been collected for amounts due and
unpaid on such Securities for principal, premium, if any, interest and
Additional Amounts, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal,
premium, if any, interest and Additional Amounts, if any, respectively; and

            THIRD: to the Company.

            The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each holder and the Company a notice that states
the record date, the payment date and the amount to be paid.

      Section 5.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.

      Section 5.13. Rights and Remedies Cumulative. To the extent permitted by
applicable law and except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.

      Section 5.14. Waiver of Stay or Extension Laws. The Company covenants
that (to the extent that it may lawfully do so) it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
indenture; and the Company expressly waives (to the extent that it may lawfully
do so) all benefit or advantage of any such law and covenants (to the extent it
may lawfully do so) that it will not hinder, delay or impede the execution of
any power herein granted to the trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.

      Section 5.15. Undertaking for Costs. All parties to this indenture
agree, and each holder of any security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this indenture, or in any suit
against the trustee for any action taken or omitted by it as trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its

                                       37
   43

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 5.15 shall not apply to any suit instituted by
the trustee, to any suit instituted by any holder, or group of holders, holding
in the aggregate more than 10% in principal amount of outstanding securities of
any series, or to any suit instituted by any holder for the enforcement of the
payment of the principal of, or premium, if any, or interest, if any, on or
additional amounts, if any, with respect to any security on or after the
respective stated maturities expressed in such security (or, in the case of
redemption, on or after the redemption date, or, in the case of repurchase by
the company at the option of the holder, on or after the date for repurchase).


                                    ARTICLE 6

                                   THE TRUSTEE

      Section 6.1.  Certain Duties and Responsibilities of the Trustee.

            (a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act and no implied duties shall be
inferred against the Trustee.

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

      Section 6.2. Rights of Trustee. Subject to the provisions of the Trust
Indenture Act:

            (a) The Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper party or parties. The
Trustee need not investigate any fact or matter stated in the document but the
Trustee may, in its discretion, 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 expense of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry.

            (b) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.

            (c) Before the Trustee acts or refrains from acting, it may consult
with counsel of its own selection (who may be in-house counsel) or require an
Officers' Certificate. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on a Board Resolution, the written
advice of counsel, who may be an attorney for the Company, an Officers'
Certificate or an Opinion of Counsel.

                                       38
   44

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

            (e) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.

            (f) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of its rights or powers.

            (g) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.

            (h) The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith and without negligence in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.

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

            (j) The Trustee's rights to immunities and protection from liability
hereunder and its rights to payment of its fees and expenses shall survive
termination of this Agreement and its resignation or removal.

            (k) 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, custodian and other Person employed
to act hereunder.

      Section 6.3. Trustee May Hold Securities. The Trustee, any Paying Agent,
any Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company and an Affiliate or Subsidiary of the Company with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.

      Section 6.4. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing with the
Company.

      Section 6.5. Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity, adequacy or priority of this Indenture or the Securities or any
coupon. The Trustee

                                       39
   45

shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.

      Section 6.6. Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any series and if it is actually known to a
Responsible Officer of the Trustee, the Trustee shall, within 90 days after it
occurs, transmit by mail, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, notice of all Defaults known to it unless
such Default shall have been cured or waived; provided, however, that in the
case of a Default in payment on the Securities of any series, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding such notice is in the interests of
Holders of Securities of that series; and provided, further, that in the case of
any Default of the character specified in Section 5.1(3) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.

            The Trustee shall not be deemed to have notice of a Default or an
Event of Default unless (i) the Trustee has received written notice thereof from
the Company or any Holder or (ii) a Responsible Officer of the Trustee shall
have actual knowledge thereof as evidenced in writing. Except as otherwise
expressly provided herein, the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein, or of any of the documents executed in
connection with the Securities, or as to the existence of a Default or an Event
of Default thereunder.

      Section 6.7. Reports by Trustee to Holders. Within 60 days after each
November 15 of each year commencing with the first November 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such November 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act.

      Section 6.8. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.

      Section 6.9.  Compensation and Indemnity.

            (a) The Company shall pay to the Trustee such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all out-of-pocket expenses incurred
by it in connection with the performance of its duties under this Indenture,
except any such expense as shall be determined to have been caused by its own
negligence or willful misconduct. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.

                                       40
   46

            (b) The Company shall fully indemnify the Trustee for, and hold it
harmless against, any and all loss or liability, damage, claim or expense
including taxes (other than taxes based upon or determined or measured by the
income of the Trustee) incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.

            (c) The Company need not reimburse any expense or indemnify against
any loss or liability determined by a court of competent jurisdiction to have
been caused by the Trustee through its own negligence or willful misconduct.

            (d) To secure the payment obligations of the Company pursuant to
this Section, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, in its
capacity as Trustee, except that held in trust to pay principal, premium, if
any, and interest on and Additional Amounts, if any, with respect to particular
Securities.

            When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(5) or Section 5.1(6), 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.

            The provisions of this Section shall survive the termination of this
Indenture and the registration or removal of the Trustee. All indemnifications
and releases from liability granted in this Article 6 to the Trustee shall
extend to its directors, officers, employees and agents and to the Trustee and
to each Paying Agent and Registrar. Whether or not expressly provided for
herein, every provision of this Indenture relating to the conduct or affecting
the liability of the Trustee shall be subject to the provision of this
Article 6.

      Section 6.10. Replacement of Trustee.

            (a) The resignation or removal of the Trustee and the appointment of
a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11.

            (b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.

            (c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.

                                       41
   47

If the instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the Trustee being removed may petition at the expense of
the Company any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.

            (d) If at any time:

                  (1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months, or

                  (2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months; or

                  (3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge of the
Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation,

then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.

            (e) if the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.

      Section 6.11. Acceptance of Appointment by Successor.

            (a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment. Thereupon, the resignation or

                                       42
   48

removal of the retiring Trustee shall become effective, and the successor
Trustee, without further act, deed or conveyance, shall become vested with all
the rights, powers and duties of the retiring Trustee; but, on the request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.

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

            (c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.

            (d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.

            (e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 1.6.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust office.

      Section 6.12. Eligibility; Disqualification. There shall at all times be
a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at

                                       43
   49

least $50,000,000 (or, in the case of a Trustee which is a subsidiary of a bank
holding company, which Trustee shall have a combined capital and surplus of at
least $10,000,000 and whose ultimate parent bank holding company shall have a
combined capital and surplus of at least $50,000,000). If such corporation (or
ultimate parent bank holding company, as the case may be) publishes reports of
condition at least annually, pursuant to law or the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation (or ultimate parent bank holding company, as the case may be) shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.

      Section 6.13. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.

      Section 6.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any state or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.

            Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to

                                       44
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the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.

            An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.

            The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.

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

            This is one of the Securities of the series described in the
within-mentioned Indenture.


                                        ----------------------------------------
                                        Trustee

                                        By
                                           -------------------------------------
                                           as Authenticating Agent

                                        By
                                           -------------------------------------
                                           Authorized Signatory

                                        Dated:
                                               ---------------------------------


                                    ARTICLE 7

                  CONSOLIDATION, MERGER OR SALE BY THE COMPANY

      Section 7.1. Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate or merge with or into, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of its assets
to, any Person unless:

            (1) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or which acquires the Company's assets, is a
corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia;

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   51

            (2) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or which acquires the Company's assets,
expressly assumes by supplemental indenture all the obligations of the Company
under the Securities and this Indenture; and

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

         The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate and an Opinion of Counsel each stating that
the proposed transaction and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of the
transaction under this Indenture have been met.

      Section 7.2. Successor Person Substituted for Company. Upon any
consolidation by the Company with or merger of the Company into any other Person
or any sale, conveyance, assignment, transfer, lease or other disposition of all
or substantially all of the assets of the Company to any Person in accordance
with Section 7.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such sale, conveyance, assignment,
transfer, lease or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, the Securities and the coupons.


                                    ARTICLE 8

                             SUPPLEMENTAL INDENTURES

      Section 8.1. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:

            (1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or

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

            (3) to add any additional Events of Default with respect to all or
any series of Securities; or

            (4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to facilitate the issuance of Bearer
Securities (including, without limitation, to provide that Bearer Securities may
be registrable as to principal only) or to facilitate the issuance of Securities
in global form; or

                                       46
   52

            (5) to amend or supplement any provision contained herein or in any
supplemental indenture (which amendment or supplement may apply to one or more
series of Securities or to one or more Securities within any series as specified
in such supplemental indenture), provided that such amendment or supplement does
not apply to any Outstanding Security issued prior to the date of such
supplemental indenture and entitled to the benefits of such provision; or

            (6) to secure the Securities; or

            (7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or

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

            (9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States of principal, premium, if
any, or interest, if any, on Bearer Securities or coupons, if any; or

            (10) to cure any ambiguity or correct any mistake or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not adversely
affect the interests of any Holder of Securities of any series; or

            (11) to make any change to comply with the Trust Indenture Act of
1939 or any amendment thereof, or any requirement of the Securities and Exchange
Commission in connection with the qualification of this Indenture under the
Trust Indenture Act of 1939 or any amendment thereof.

      Section 8.2. Supplemental Indentures With Consent of Holders. With the
written consent of the Holders of a majority of the aggregate principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee
may enter into an indenture or indentures supplemental hereto to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any other indenture supplemental hereto or to modify the rights of the Holders
of such Securities; provided, however, that without the consent of the Holder of
each Outstanding Security affected thereby, an amendment under this Section may
not:

            (1) change the Stated Maturity of the principal of or premium, if
any, on or of any installment of principal of or premium, if any, or interest,
if any, on, or Additional Amounts, if any, with respect to, any Security, or
reduce the principal amount of, or any installment of principal of, or premium,
if any, or interest, if any, on, or any Additional Amounts payable with respect
to, any Security or the rate of interest on any Security, or reduce the amount
of premium, if any, payable upon redemption of any Security or the repurchase by
the Company of any Security at the option of the Holder thereof, or change the
manner in which the amount of any principal thereof or premium, if any, or
interest thereon or Additional Amounts, if any, with respect thereto is
determined, or reduce the amount of the principal of any Original Issue Discount
Security or Indexed

                                       47
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Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change the currency in which any
Securities or any premium or the interest thereon or Additional Amounts, if any,
with respect thereto, is payable, or change the index, securities or commodities
with reference to which or the formula by which the amount of principal or any
premium or the interest thereon is determined, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date or, in
the case of repurchase by the Company at the option of the Holder, on or after
the date for repurchase);

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

            (3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2; or

            (4) make any change in Section 5.7 or this 8.2 except to increase
any percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holders of each
Outstanding Security affected thereby.

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

         It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.

      Section 8.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.

      Section 8.4. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.

      Section 8.5. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.

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   54

      Section 8.6. Reference in Securities to Supplemental Indentures.
Securities, including any coupons, of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities including any coupons of any series
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.


                                    ARTICLE 9

                                    COVENANTS

      Section 9.1. Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, and premium,
if any, and interest on, and Additional Amounts, if any, with respect to, the
Securities of that series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. An installment of
principal, premium, if any, interest or Additional Amounts, if any, shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.

      Section 9.2. Maintenance of Office or Agency. If Securities of a series
are issued as Registered Securities, the Company will maintain in each Place of
Payment for such series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain, (i) subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States where
Securities of that series and related coupons may be presented and surrendered
for payment; provided, however, that if the Securities of that series are listed
on any stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed on such
exchange, and (ii) subject to any laws or regulations applicable thereto, an
office or agency in a Place of Payment for that series which is located outside
the United States, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.

            Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United

                                       49
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States; provided, however, that, if the Securities of a series are denominated
and payable in Dollars, payment of principal of and any premium or interest on
any such Bearer Security shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.

            The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.

            Unless otherwise provided in or pursuant to this Indenture, the
Company hereby designates the Borough of Manhattan, The City of New York, as the
Place of Payment for each series of Securities and initially appoints the
Trustee, at its offices which on the date of this Indenture are located at The
Bank of New York, 101 Barclay Street, Floor 21W, New York, New York 10286, as
the Company's agency in the Borough of Manhattan, The City of New York for the
foregoing purposes and as Registrar and Paying Agent. The Company may
subsequently appoint a different office or agency in the Borough of Manhattan,
The City of New York and a different Registrar and Paying Agent for the
Securities of any series.

      Section 9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, or premium, if any, or interest on, or Additional Amounts, if
any, with respect to, any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee in writing of its action or failure so to act.

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

            (1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on or Additional Amounts, if any, with respect to
the Securities of that 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 herein provided;

            (2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
of principal, premium, if any, or interest on the Securities; and

                                       50
   56

            (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 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 direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.

         Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of any principal, premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, shall thereafter, as an unsecured general creditor, look
only to the Company 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 at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
such Holder, 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, any unclaimed balance of such money then remaining will
be repaid to the Company.

      Section 9.4. Corporate Existence. Except as provided in Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company and not prejudicial in any material respect to the
Holders of the Securities.

      Section 9.5. Insurance. The Company covenants and agrees that it will
maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as are consistent with sound business practice for
corporations engaged in the same or similar business similarly situated. In lieu
of the foregoing or in combination therewith, in case of itself or of any one or
more of its Subsidiaries, the Company will maintain or cause to be maintained a
system or systems of self-insurance which will accord with the financially sound
and approved practices of companies owning or operating properties of a similar
character and maintaining such systems.

      Section 9.6.  Reports by the Company.  The Company covenants:

            (a) to file with the Trustee, within 30 days after the Company 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 Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as

                                       51
   57

amended; or, if the Company 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 rules and regulations 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
Securities Exchange Act of 1934, as amended, 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
the rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture, as may
be required from time to time by such rules and regulations; and

            (c) to transmit to all Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 9.6, as may be required by the 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, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).

      Section 9.7. Annual Review Certificate; Notice of Defaults or Events of
Default.

            (a) The Company covenants and agrees to deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company, a certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of this Section
9.7, such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.

            (b) The Company covenants and agrees to deliver to the Trustee,
promptly after the Company becomes aware of the occurrence of a Default or an
Event of Default of the character specified in Section 5.1(4) hereof, written
notice of the occurrence of such Default or Event of Default.

      Section 9.8.  Limitation on Liens.

            (a) The Company will not, and will not permit any Subsidiary to,
incur, assume or guarantee any Debt secured by a Lien on any shares of capital
stock of, or other ownership interests in, any Restricted Subsidiary ("Secured
Debt") (whether such capital stock or ownership interests are owned or
outstanding at the date of this Indenture or thereafter acquired or issued, as
the case may be) if, immediately after giving effect thereto, the aggregate
principal amount of all Secured Debt (other than Excluded Debt) would exceed 15%
of the Company's Consolidated Net Tangible Assets, unless the Company provides,
concurrently with or prior to the incurrence, assumption or guarantee of such
Secured Debt, that the Securities shall be secured equally and ratably with (or,
at the option of the Company, prior to) such Secured Debt.

                                       52
   58

            (b) The provisions set forth in Section 9.8(a) shall not apply to
Debt secured by the following Liens ("Excluded Debt"):

                  (i) (A) Liens existing as of the date of this Indenture or (B)
Liens relating to contracts entered into by the Company or any Subsidiary prior
to the date of this Indenture;

                  (ii) Liens securing all or any part of the indebtedness
incurred pursuant to that certain Credit Agreement, dated as of February 10,
2000, by and among the Company, as Borrower, Bank of America, N.A., as
Administrative Agent, Chase Securities Inc., as Syndication Agent, Morgan
Stanley Senior Funding, Inc., as Documentation Agent, Paribas, as
Co-Documentation, and various financial institutions and other persons from time
to time parties thereto, as Lenders;

                  (iii) Liens on any shares of capital stock or other ownership
interests existing at the time of acquisition thereof (whether such acquisition
is direct or by merger, acquisition of stock or assets or otherwise) by the
Company or any of its Subsidiaries, provided such Liens were not created in
contemplation of or in connection with such acquisition;

                  (iv) Liens securing Debt owing by any Subsidiary to the
Company or to any other Subsidiary;

                  (v) Liens in favor of governmental bodies to secure advance,
progress or other payments pursuant to any contract or statute;

                  (vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;

                  (vii) Liens for taxes not yet due or which are being contested
by the Company in good faith; and

                  (viii) Liens for the sole purpose of extending, renewing or
replacing in whole or in part the Debt secured thereby referred to in the
foregoing clauses (i) to (vii), inclusive, or in this clause (viii); provided,
however, that the Debt excluded pursuant to this clause (viii) shall be excluded
only in an amount not to exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement, and that such extension, renewal
or replacement shall be limited to all or part of the shares of capital stock or
other ownership interests, as the case may be, subject to the Lien so extended,
renewed or replaced.

      Section 9.9.  Books of Record and Account; Compliance with Law.

            (a) The Company will keep, and will cause each Subsidiary to keep,
proper books of record and account, either on a consolidated or individual
basis. The Company shall cause its books of record and account to be examined by
one or more firms of independent public accountants not less frequently than
annually. The Company shall prepare its financial statements in accordance with
GAAP.

            (b) The Company shall, and shall cause each of its Subsidiaries to,
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-

                                       53
   59

compliance with which would materially adversely affect the business, prospects,
earnings, properties, assets or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole.

      Section 9.10. Taxes. The Company shall, and shall cause each of its
Subsidiaries to, pay or discharge or cause to be paid or discharged prior to
delinquency all taxes, assessments and governmental levies the non-payment of
which would materially adversely affect the business, prospects, earnings,
properties, assets or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole except those taxes, assessments and governmental
levies whose amount, applicability or validity is being contested in good faith
and by appropriate proceedings.

      Section 9.11. Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts pursuant to Section 3.1(b)(18), the
Company agrees to pay to the Holder of each such Security or any coupon
appertaining thereto Additional Amounts as provided in or pursuant to this
Indenture or such Securities. 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 any coupon appertaining thereto,
such mention shall be deemed to include mention of the payment of any 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 any series, if the Securities of a series provide for the payment
of Additional Amounts, 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 the Securities of such series shall be made to Holders of
Securities of such series or the coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
similar governmental charge described in the terms of 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 or coupons, and the Company
agrees to pay to the Trustee or such Paying Agent on or prior to the date such
payment is due 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.

      Section 9.12. Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Securities as of the end of such
year, and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.

                                       54
   60
                                   ARTICLE 10

                                   REDEMPTION

      Section 10.1. Applicability of Article. Securities (including coupons,
if any) of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in accordance with
this Article.

      Section 10.2. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities, including coupons, if any, shall be evidenced
by or pursuant to a Board Resolution. In the case of any redemption at the
election of the Company of less than all the Securities or coupons, if any, of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities (i) prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an election
of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.

      Section 10.3. Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities
(including coupons, if any) of a series with the same terms are to be redeemed,
the Trustee, not more than 45 days prior to the Redemption Date, shall select
the Securities of the series to be redeemed in such manner as the Trustee shall
deem fair and appropriate. The Trustee shall make the selection from Securities
of the series that are Outstanding and that have not previously been called for
redemption and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for Securities
of that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.

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

      Section 10.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.

            All notices of redemption shall state:

                  (1) the Redemption Date;

                                       55
   61

                  (2) the Redemption Price;

                  (3) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be redeemed;

                  (4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without a charge, a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed;

                  (5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price;

                  (6) that Securities of the series called for redemption and
all unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the Redemption Price;

                  (7) that, on the Redemption Date, the Redemption Price,
together with (except as otherwise set forth in Section 10.6 or as may otherwise
be specified with respect to such Securities pursuant to Section 3.1) accrued
and unpaid interest, if any, on and Additional Amounts, if any, with respect to
the Securities (or portions thereof) to be redeemed, will become due and payable
upon each such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;

                  (8) that the redemption is for a sinking fund, if such is the
case;

                  (9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished; and

                  (10) the CUSIP number, if any, of the Securities.

            Notice of redemption of Securities to be redeemed 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.

      Section 10.5. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article 11, segregate and hold in trust as
provided in Section 9.3) an amount of money in the currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.

            Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than

                                       56
   62

through a sinking fund), the Company may deliver such Securities to the Trustee
for crediting against such payment obligation in accordance with the terms of
such Securities and this Indenture.

      Section 10.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with (except as otherwise set forth in this Section
10.6 or as may otherwise be specified with respect to such Securities pursuant
to Section 3.1) accrued interest, if any, thereon and Additional Amounts, if
any, with respect thereto to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in the
next succeeding paragraph, upon surrender of any such Security, including
coupons, if any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest and Additional Amounts, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.

            If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside of the United States (except as otherwise
provided pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of those
coupons.

            If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by or
prescribed therefor in the Security.

      Section 10.7. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part at any Place of Payment therefor (with, if the Company
or the Trustee so required, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.

                                       57
   63

                                   ARTICLE 11

                                  SINKING FUNDS

      Section 11.1. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.

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

      Section 11.2. Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.

      Section 11.3. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.

            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 instrument.

                                       58
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            IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.

                                        FIDELITY NATIONAL FINANCIAL, INC.


                                        By: /s/ MARLAN WALKER
                                            ------------------------------------
                                        Name: Marlan Walker
                                        Title: Executive Vice President, Legal


Attest:

/s/ HILARY BURKEMPER
- ----------------------------------------
Hilary Burkemper
Assistant Corporate Secretary


                                        THE BANK OF NEW YORK


                                        By: /s/ MICHAEL PITFICK
                                            ------------------------------------
                                        Name: Michael Pitfick
                                        Title:

                                       59

EX-4.2

   1
                                                                     EXHIBIT 4.2


                                 CERTIFICATE OF
                         EXECUTIVE VICE PRESIDENT, LEGAL
                                       AND
                VICE PRESIDENT AND ASSISTANT CORPORATE SECRETARY
                   PURSUANT TO SECTIONS 1.2, 2.1, 3.1 AND 3.3
                                OF THE INDENTURE



            The undersigned, Marlan Walker and Hilary Burkemper, do hereby
certify that they are the duly appointed and acting Executive Vice President,
Legal and Vice President and Assistant Corporate Secretary, respectively, of
FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the "Company"). Each
of the undersigned also hereby certifies in such capacities, pursuant to
Sections 1.2, 2.1, 3.1 and 3.3 of the Indenture dated as of August 20, 2001
between the Company and The Bank of New York, as Trustee (the "Indenture"),
that:

            A. There has been established pursuant to resolutions duly adopted
by the Board of Directors of the Company and a duly authorized committee thereof
(a copy of such resolutions being attached hereto as Exhibit A), a series of
Securities (as that term is defined in the Indenture) to be issued under the
Indenture, with the following terms:

            1. The title of the Securities of the series is "7.30% Notes due
      August 15, 2011" (the "Notes"), CUSIP number 316326AC1.

            2. The limit upon the aggregate principal amount of the Notes which
      may be authenticated and delivered under the Indenture (except for Notes
      authenticated and delivered upon registration of transfer of, or in
      exchange for, or in lieu of other Notes pursuant to Sections 3.4, 3.5,
      3.6, 8.6 or 10.7 of the Indenture) is $250,000,000. The limit upon the
      aggregate principal amount of the Notes may be increased by the Company
      without the consent of the holders of any outstanding Notes.

            3. The date on which the principal of the Notes is payable, unless
      accelerated pursuant to the Indenture, shall be August 15, 2011.

            4. The rates at which the Notes shall bear interest shall be 7.30%
      per annum.

            5. The date from which interest shall accrue on the Notes shall be
      August 20, 2001.

            6. The Interest Payment Dates on which interest on the Notes shall
      be payable are August 15 and February 15. The initial Interest Payment
      Date shall be February 15, 2002. The Regular Record Dates for the interest
      payable on the Notes on any Interest Payment Date shall be the August 1
      and February 1, as the case may be, immediately preceding such Interest
      Payment Date. Interest on the Notes shall be payable to the persons in
      whose name the Notes are registered at

   2

      the close of business on the Regular Record Date (as defined in the
      Indenture) for such interest payment, except that interest payable on
      August 15, 2011 shall be payable to the persons to whom principal is
      payable on such date.

            7. The place or places where the principal of and interest on the
      Notes shall be payable is at the agency of the Trustee maintained for that
      purpose at the office of The Bank of New York, 101 Barclay Street, Floor
      21W, New York, New York 10286; provided that payment of interest, other
      than at Stated Maturity (as defined in the Indenture), may be made at the
      option of the Company by check mailed to the address of the person
      entitled thereto as such address shall appear in the Register (as defined
      in the Indenture); and provided further that the Depository (as defined in
      the Indenture), or its nominee, as holder of Notes in global form, shall
      be entitled to receive payments of interest by wire transfer of
      immediately available funds.

            8. The Notes shall be redeemable at the option of the Company, at
      any time in whole or from time to time in part, at a price (the
      "Redemption Price") equal to the greater of (i) 100% of the principal
      amount of the Notes to be redeemed and (ii) the sum of the present values
      of the remaining scheduled payments of principal and interest on the Notes
      to be redeemed, exclusive of interest accrued to the date of redemption
      (the "Redemption Date"), discounted to the Redemption Date on a semiannual
      basis (assuming a 360-day year consisting of twelve 30-day months) at the
      applicable Treasury Yield plus 30 basis points, plus accrued interest
      thereon to the Redemption Date. The Notes called for redemption shall
      become due on the Redemption Date.

            For purposes of determining the Redemption Price, the following
      definitions are applicable:

            "Comparable Treasury Issue" means the United States Treasury
      security selected by an Independent Investment Banker as having a maturity
      comparable to the remaining term of the Notes that would be utilized, at
      the time of selection and in accordance with customary financial practice,
      in pricing new issues of corporate debt securities of comparable maturity
      to the remaining term of the Notes.

            "Comparable Treasury Price" means, with respect to any Redemption
      Date:

            the average of the bid and the asked prices for the Comparable
            Treasury Issue, expressed as a percentage of its principal amount,
            at 4:00 p.m. on the third business day preceding that Redemption
            Date, as set forth on "Telerate Page 500," or such other page as may
            replace Telerate Page 500; or

            if Telerate Page 500, or any successor page, is not displayed or
            does not contain bid and/or asked prices for the Comparable Treasury
            Issue at that

                                       2
   3

            time, the average of the Reference Treasury Dealer Quotations
            obtained by the Trustee for that Redemption Date, after excluding
            the highest and lowest of such Reference Treasury Dealer Quotations,
            or, if the Trustee is unable to obtain at least four such Reference
            Treasury Dealer Quotations, the average of all Reference Treasury
            Dealer Quotations obtained by the Trustee.

            "Independent Investment Banker" means Lehman Brothers Inc. and any
      successors or, if it is unwilling or unable to select the applicable
      Comparable Treasury Issue, an independent investment banking institution
      of national standing appointed by the Trustee and reasonably acceptable to
      the Company.

            "Reference Treasury Dealer" means Lehman Brothers Inc. and any
      successors and four other primary United States government securities
      dealers in New York City selected by the Independent Investment Banker
      (each, a "Primary Treasury Dealer"); provided that, if any of the
      foregoing ceases to be a Primary Treasury Dealer, the Company shall
      substitute another Primary Treasury Dealer therefor.

            "Reference Treasury Dealer Quotations" means, with respect to each
      Reference Treasury Dealer and any Redemption Date, an average, as
      determined by the Trustee, of the bid and asked prices for the Comparable
      Treasury Issue for the Notes, expressed in each case as a percentage of
      its principal amount, quoted in writing to the Trustee by the Reference
      Treasury Dealer at 5:00 p.m., New York City time, on the third business
      day preceding the Redemption Date.

            "Treasury Yield" means, with respect to any Redemption Date, the
      rate per annum equal to the semiannual equivalent yield to maturity,
      computed as of the third business day immediately preceding the Redemption
      Date, of the Comparable Treasury Issue, assuming a price for the
      Comparable Treasury Issue, expressed as a percentage of its principal
      amount, equal to the applicable Comparable Treasury Price for the
      Redemption Date.

            9. There is no obligation of the Company to redeem or purchase the
      Notes pursuant to any sinking fund or analogous provisions, or to repay
      any of the Notes prior to Stated Maturity at the option of a holder
      thereof.

            10. The Notes shall be issued in fully registered form in
      denominations of $1,000 or any amount in excess thereof which is an
      integral multiple of $1,000.

            11. The principal amount of the Notes shall be payable upon
      declaration of acceleration of the maturity thereof pursuant to Section
      5.2 of the Indenture.

            12. Section 9.8 of the Indenture shall be deemed to be amended, for
      purposes of the Notes only, to delete the provisions appearing therein in
      their entirety and to replace such provisions with the following:

                                       3
   4

            "Section 9.8. Limitation on Liens. The Company shall not, and shall
      not permit any of its Restricted Subsidiaries to, incur, assume or
      guarantee any Debt secured by a Lien on any part of its property, whether
      now owned or hereafter acquired, without effectively securing the Notes
      equally and ratably with that Debt, other than the following:

                  (a) any Lien created under the Credit Agreement (as defined
            below) or any document executed and delivered pursuant to or in
            accordance with the requirements thereof;

                  (b) Liens for taxes, fees, assessments or other governmental
            charges which are not delinquent or remain payable without penalty,
            or to the extent that non-payment thereof is being contested in good
            faith and by proper proceedings, if the Company or the applicable
            Restricted Subsidiary has maintained adequate reserves (in the good
            faith judgment of the management of the Company) with respect
            thereto in accordance with GAAP;

                  (c) carriers', warehousemen's, mechanics', landlords',
            materialmen's, repairmen's or other similar Liens arising in the
            ordinary course of business which are not delinquent or remain
            payable without penalty or which are being contested in good faith
            by appropriate proceedings diligently prosecuted;

                  (d) Liens existing on August 20, 2001;

                  (e) Liens consisting of pledges or deposits of cash or
            securities made by any Restricted Subsidiary in the insurance
            business as a condition to obtaining or maintaining any licenses
            issued to it by, or to satisfy the requirements of, any
            administrative or governmental body of the state of domicile of such
            Restricted Subsidiary responsible for the regulation thereof;

                  (f) Liens consisting of judgment or judicial attachment Liens
            (other than arising as a result of claims under or related to
            insurance contracts or policies, retrocession agreements or
            reinsurance agreements); provided that the enforcement of such Liens
            is effectively stayed or fully covered by insurance and all such
            Liens in the aggregate at any time outstanding for the Company and
            its Restricted Subsidiaries do not exceed $20,000,000;

                  (g) Liens on assets subject to, and securing obligations in
            respect of, leases that, in conformity with GAAP, are, or are
            required to be, accounted for as capital leases on the applicable
            balance sheet, which are entered into in the ordinary course of
            business and are non-recourse to the Company or its Restricted
            Subsidiaries, and other such leases in an aggregate amount not to
            exceed $15,000,000 at any one time outstanding;

                                       4
   5

                  (h) Liens securing obligations permitted under Sections 8.4(f)
            and (g) of the Credit Agreement, to the extent such Liens are
            identified and permitted under such sections;

                  (i) Liens arising as a result of claims under or related to
            insurance contracts or policies, reinsurance agreements or
            retrocession agreements in the ordinary course of business, or
            securing Debt of Restricted Subsidiaries in the insurance business
            incurred or assumed in connection with the settlement of claim
            losses in the ordinary course of business of such Restricted
            Subsidiaries;

                  (j) Liens on assets of a Person that becomes a Restricted
            Subsidiary after August 20, 2001 securing Debt of such Person, which
            Liens and Debt previously existed and were not created in
            contemplation of such acquisition, and which Liens are not spread to
            cover any other property;

                  (k) Liens on assets of the Company or its Restricted
            Subsidiaries securing Debt owed to the Company or a Restricted
            Subsidiary;

                  (l) so long as no Default or Event of Default has occurred and
            is continuing, other Liens securing obligations in an aggregate
            amount not exceeding $20,000,000; and

                  (m) any extension, renewal or replacement of the foregoing;
            provided that the Liens permitted hereby shall not be spread to
            cover any additional Debt or property (other than a substitution of
            like property).

      For purposes of this Section 9.8, "Credit Agreement" shall mean the Credit
      Agreement dated as of February 10, 2000 among the Company, Bank of
      America, N.A., as Administrative Agent, Chase Securities Inc., as
      Syndication Agent, Morgan Stanley Senior Funding, Inc., as Documentation
      Agent, Paribas, as Co-Documentation Agent, and the financial institutions
      and other persons from time to time parties thereto, as amended,
      supplemented, amended and restated or otherwise modified from time to
      time. For purposes of this Section 9.8, the term "Restricted Subsidiary"
      shall include all Subsidiaries of the Company except FNF Capital, Inc.,
      Fidelity Asset Management, Inc., Micro General Corporation, Fidelity
      National Information Solutions, Inc., any of their respective
      Subsidiaries, and any other Person defined as an "Excluded Subsidiary"
      under the terms of the Credit Agreement.

            13. Section 5.1(4) of the Indenture shall be deemed to be amended,
      for purposes of the Notes only, to delete the provision appearing therein
      in its entirety and to replace such provision with the following:

                                       5
   6

            "(4) default in the payment when due of amounts payable under any
      bond, note, debenture or other evidence of Debt of the Company (including
      such default with respect to any other series of Securities), or under any
      mortgage, indenture or other instrument under which there may be issued or
      by which there may be secured or evidenced any Debt of the Company,
      whether such Debt exists on the date of this Indenture or shall hereafter
      be incurred or created, in an aggregate amount exceeding $20,000,000, or
      default under any such evidence of Debt (including default with respect to
      any other series of Securities), or under any such other instrument, which
      results in such Debt in an aggregate principal amount exceeding
      $20,000,000 becoming or being declared due and payable prior to the date
      on which it would otherwise have become due and payable, and such
      outstanding amount shall not be paid in full, such acceleration shall not
      be rescinded or annulled or such Debt shall not be paid in full, or there
      shall not be deposited into trust a sum of money sufficient to pay in full
      such outstanding amount or such Debt, within a period of 10 days after
      there shall have been given, by registered or certified mail, to the
      Company by the Trustee or to the Company and the Trustee by the Holders of
      at least 25% in aggregate principal amount of the Notes a written notice
      specifying such default and requiring the Company to cause such
      outstanding amount to be paid in full, such acceleration to be rescinded
      or annulled, or such Debt to be paid in full, or to deposit into trust a
      sum of money sufficient to pay in full such outstanding amount or Debt and
      stating that such notice is a "Notice of Default" hereunder;"

            14. The Notes shall be defeasible as provided in Sections 4.4 and
      4.5 of the Indenture.

            15. The Notes shall be issued in global form. The Depository Trust
      Company shall be the Depository for the Notes in global form. The Notes
      shall only be transferred in accordance with the provisions of Section 3.5
      of the Indenture.

            B. The form of the global Security representing the Notes is
attached hereto as Exhibit B.

            C. The Trustee is appointed as Registrar and Paying Agent.

            D. The foregoing form and terms of the Notes have been established
in conformity with the provisions of the Indenture.

            E. The undersigned have read the provisions of Sections 3.1 and 3.3
of the Indenture and the definitions relating thereto and the resolutions
adopted by the Board of Directors of the Company and a duly authorized committed
thereof delivered herewith and have examined the form of global Security
representing the Notes. In the opinion of each of the undersigned, each has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not all conditions precedent provided in the
Indenture relating to the establishment, authentication and delivery of the
series of Securities under the Indenture, designated as

                                       6
   7
the Notes in this Certificate, have been complied with. In the opinion of each
of the undersigned, all such conditions precedent have been complied with.

            F. The undersigned, by execution of this Certificate, hereby certify
the actions taken by the Board of Directors of the Company and the duly
authorized committee thereof in determining and setting the specific terms of
the Notes and hereby further certify that attached hereto as Exhibits A and B,
respectively, are a copy of resolutions duly adopted by the Board of Directors
of the Company on August 10, 2001 and a duly authorized committee thereof on
August 10, 2001 pursuant to which the terms of the Notes set forth above have
been established and the form of global Security representing the Notes as duly
approved by the Board of Directors of the Company and such committee.

                  [Remainder of page intentionally left blank]

                                       7
   8

            IN WITNESS WHEREOF, the undersigned have hereunto executed this
Certificate as of the 20th day of August, 2001.


                                        /s/ MARLAN WALKER
                                        ----------------------------------------
                                        Marlan Walker
                                        Executive Vice President, Legal


                                        /s/ HILARY BURKEMPER
                                        ----------------------------------------
                                        Hilary Burkemper
                                        Vice President and
                                        Assistant Corporate Secretary



                                      S-1

EX-4.3

   1
                                                                     EXHIBIT 4.3


THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS 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.


No. 1                                                       CUSIP No.: 316326AC1


                         7.30% NOTE DUE AUGUST 15, 2011


      FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation, promises to pay
to CEDE & CO., or registered assigns, the principal sum of Two Hundred and Fifty
Million Dollars ($250,000,000) on August 15, 2011.

Interest Payment Dates:  February 15 and August 15

Regular Record Dates:  February 1 and August 1

Authenticated:  August 20, 2001

Dated:  August 20, 2001


FIDELITY NATIONAL FINANCIAL, INC.


By: /s/ ALAN L. STINSON                 By: /s/ MARLAN WALKER
    --------------------------------        ------------------------------------
        Alan L. Stinson                          Marlan Walker
        Executive Vice President                 Executive Vice President, Legal
        and Chief Financial Officer


                          Certificate of Authentication

      The Bank of New York, as Trustee, certifies that this is one of the
Securities described in the within-mentioned Indenture.


                                        THE BANK OF NEW YORK,
                                        as Trustee


                                        By: /s/ MICHAEL PITFICK
                                            ------------------------------------
                                                  Authorized Signatory

   2

                        FIDELITY NATIONAL FINANCIAL, INC.

                         7.30% NOTE DUE AUGUST 15, 2011


      1. INTEREST. Fidelity National Financial, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Security at the rate of 7.30% per annum. The Company shall pay interest
semiannually on February 15 and August 15 of each year (each an "Interest
Payment Date"), commencing February 15, 2002, until the principal is paid or
made available for payment. Interest on this Security will accrue from the most
recent date to which interest has been paid or duly provided for or, if no
interest has been paid, from August 20, 2001. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.

      2. METHOD OF PAYMENT. The Company shall pay interest on this Security
(except defaulted interest, if any, which shall be paid on such special payment
date as may be fixed by the Company to Holders of record on such special record
date as may be fixed by the Company) to the persons who are registered Holders
at the close of business on the February 1 or August 1 immediately preceding any
Interest Payment Date, except that interest payable on August 15, 2011 shall be
payable to the persons to whom principal is payable on such date. A holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.

      3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"Trustee") shall act as Paying Agent and Registrar. The Company may change or
appoint any Paying Agent, Registrar or co-Registrar without notice. The Company
or any of its Subsidiaries may act as Paying Agent, Registrar or co-Registrar.

      4. INDENTURE. The Company issued this Security under an Indenture dated as
of August 20, 2001 between the Company and the Trustee (the "Indenture"). The
terms of this Security include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as in
effect on the date of the Indenture. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement thereof.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Indenture.

      The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Fidelity National
Financial, Inc., 17911 Von Karman Avenue, Suite 300, Irvine, California 92614,
Attention: Corporate Secretary.

      5. PERSONS DEEMED OWNERS. The registered Holder or Holders of this
Security shall be treated as owners of it for all purposes.

      6. OPTIONAL REDEMPTION. This Security is redeemable at the option of the
Company, at any time in whole or from time to time in part, at a price (the
"Redemption Price") equal to the greater of (i) 100% of the principal amount of
this Security to be redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest

                                       2
   3

on the principal amount of this Security to be redeemed, exclusive of interest
accrued to the date of redemption (the "Redemption Date"), discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Yield plus 30 basis points,
plus accrued interest thereon to the Redemption Date. The principal amount of
this Security called for redemption shall become due on the Redemption Date.

      For purposes of determining the Redemption Price, the following
definitions are applicable:

            "Comparable Treasury Issue" means the United States Treasury
      security selected by an Independent Investment Banker as having a maturity
      comparable to the remaining term of this Security that would be utilized,
      at the time of selection and in accordance with customary financial
      practice, in pricing new issues of corporate debt securities of comparable
      maturity to the remaining term of this Security.

            "Comparable Treasury Price" means, with respect to any Redemption
      Date:

            the average of the bid and the asked prices for the Comparable
            Treasury Issue, expressed as a percentage of its principal amount,
            at 4:00 p.m. on the third business day preceding that Redemption
            Date, as set forth on "Telerate Page 500," or such other page as may
            replace Telerate Page 500; or

            if Telerate Page 500, or any successor page, is not displayed or
            does not contain bid and/or asked prices for the Comparable Treasury
            Issue at that time, the average of the Reference Treasury Dealer
            Quotations obtained by the Trustee for that Redemption Date, after
            excluding the highest and lowest of such Reference Treasury Dealer
            Quotations, or, if the Trustee is unable to obtain at least four
            such Reference Treasury Dealer Quotations, the average of all
            Reference Treasury Dealer Quotations obtained by the Trustee.

            "Independent Investment Banker" means Lehman Brothers Inc. and any
      successors or, if it is unwilling or unable to select the applicable
      Comparable Treasury Issue, an independent investment banking institution
      of national standing appointed by the Trustee and reasonably acceptable to
      the Company.

            "Reference Treasury Dealer" means Lehman Brothers Inc. and any
      successors and four other primary United States government securities
      dealers in New York City selected by the Independent Investment Banker
      (each, a "Primary Treasury Dealer"); provided that, if any of the
      foregoing ceases to be a Primary Treasury Dealer, the Company shall
      substitute another Primary Treasury Dealer therefor.

            "Reference Treasury Dealer Quotations" means, with respect to each
      Reference Treasury Dealer and any Redemption Date, an average, as
      determined by the Trustee, of the bid and asked prices for the Comparable
      Treasury Issue for this Security, expressed in each case as a percentage
      of its principal amount, quoted in writing to the Trustee by the Reference
      Treasury Dealer at 5:00 p.m., New York City time, on the third business
      day preceding the Redemption Date.

                                       3
   4

            "Treasury Yield" means, with respect to any Redemption Date, the
      rate per annum equal to the semiannual equivalent yield to maturity,
      computed as of the third business day immediately preceding the Redemption
      Date, of the Comparable Treasury Issue, assuming a price for the
      Comparable Treasury Issue, expressed as a percentage of its principal
      amount, equal to the applicable Comparable Treasury Price for the
      Redemption Date.

      7. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request. After that, Holders entitled to the money
must look to the Company for payment unless an abandoned property law designates
another person.

      8. AMENDMENT, SUPPLEMENT. Subject to certain exceptions, the Indenture or
this Security may be amended or supplemented with the consent of at least a
majority in aggregate principal amount of the Holders affected by the amendment.
Without the consent of any Holder, the Company and the Trustee may amend or
supplement the Indenture or this Security to, among other things, cure any
ambiguity, defect or inconsistency, to create another series of Securities and
establish its terms or to make any other change, provided such action does not
adversely affect the rights of any Holder.

      9. DEFAULTS AND REMEDIES. Any of the following shall constitute an Event
of Default:

            (a) default in the payment of any interest on this Security when the
same becomes due and payable, and continuance of such default for a period of 30
days; or

            (b) default in the payment of any principal of or premium, if any,
on this Security when the same becomes due and payable at its Maturity (whether
at Stated Maturity, upon redemption, or otherwise); or

            (c) default in the performance, or breach, of any covenant or
warranty of the Company in the Indenture or this Security (other than a covenant
or warranty for which the consequences of breach or nonperformance are addressed
elsewhere in this Section 9 or a covenant or warranty which has expressly been
included in the Indenture, whether or not by means of a supplemental indenture,
solely for the benefit of Securities of a series other than this Security), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of this Security a written notice specifying such default or
breach and requiring it to be remedied, and stating that such notice is a
"Notice of Default" hereunder; or

            (d) default in the payment when due of amounts payable under any
bond, note, debenture or other evidence of Debt of the Company (including such
default with respect to any other series of Securities), or under any mortgage,
indenture or other instrument under which there may be issued or by which there
may be secured or evidenced any Debt of the Company, whether such Debt exists on
the date of the Indenture or shall hereafter be incurred or created, in an
aggregate amount exceeding $20,000,000, or default under any such evidence of
Debt (including default with respect to any other series of Securities), or
under any such other

                                       4
   5

instrument, which results in such Debt in an aggregate principal amount
exceeding $20,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, and such
outstanding amount shall not be paid in full, such acceleration shall not be
rescinded or annulled or such Debt shall not be paid in full, or there shall not
be deposited into trust a sum of money sufficient to pay in full such
outstanding amount or such Debt, within a period of 10 days after there shall
have been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of this Security a written notice specifying such default and
requiring the Company to cause such outstanding amount to be paid in full, such
acceleration to be rescinded or annulled, or such Debt to be paid in full, or to
deposit into trust a sum of money sufficient to pay in full such outstanding
amount or Debt and stating that such notice is a "Notice of Default" hereunder;
or

            (e) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case or proceeding, (B) consents to the entry of
an order for relief against it in an involuntary case or proceeding or to the
commencement of any bankruptcy or insolvency case or proceeding against it, (C)
consents to the appointment of a Custodian of it or for all or substantially all
of its property, or (D) makes a general assignment for the benefit of its
creditors; or

            (f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, (C) orders the winding up or liquidation of
the Company , (D) adjudges the Company a bankrupt or insolvent or (E) approves
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect to the Company; and any such order or decree
described in this clause (f) remains unstayed and in effect for 60 days.

            If an Event of Default with respect to this Security occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of this Security, by written notice to the Company (and, if given by the
Holders, to the Trustee), may declare the principal of and accrued interest, if
any, on the aggregate principal amount of this Security to be due and payable,
and upon any such declaration such principal and interest, if any, shall be
immediately due and payable.

            At any time after such a declaration of acceleration with respect to
this Security has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as provided in the Indenture, the
Holders of a majority in aggregate principal amount of this Security, by written
notice to the Trustee, may rescind and annul such declaration and its
consequences as provided in the Indenture.

            The Holders of a majority in aggregate principal amount of this
Security by written notice to the Trustee may waive any past Default or Event of
Default with respect to this Security and its consequences except (a) a Default
or Event of Default in the payment of the principal of, or premium, if any, or
interest on, this Security or (b) in respect of a covenant or provision hereof
which pursuant to the Indenture cannot be amended or modified without the

                                       5
   6

consent of each Holder of this Security. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured.

      10. AMOUNT UNLIMITED. The aggregate principal amount of Securities which
may be authenticated and delivered under the Indenture is unlimited. The
Securities may be issued from time to time in one or more series. The Company
may from time to time, without the consent of the existing Holders of this
Security, issue additional Securities of the series of which this Security is a
part on substantially the same terms and conditions as those of this Security.

      11. SUCCESSOR CORPORATION. When a successor corporation assumes all the
obligations of its predecessor under this Security and the Indenture, the
predecessor corporation shall be released from those obligations.

      12. TRUSTEE DEALINGS WITH COMPANY. The Bank of New York, as Trustee under
the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its affiliates,
and may otherwise deal with the Company or its affiliates, as if it were not
Trustee.

      13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under this Security or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting this Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of this
Security.

      14. DISCHARGE OF INDENTURE. The Indenture contains certain provisions
pertaining to defeasance, which provisions shall for all purposes have the same
effect as if set forth herein.

      15. AUTHENTICATION. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.

      16. GOVERNING LAW. This Security shall be governed by and construed in
accordance with the internal laws of the State of New York.

      17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).

                  [Remainder of Page Intentionally Left Blank]

                                       6
   7

                                 ASSIGNMENT FORM

            If you the Holder want to assign this Security, fill in the form
            below: I or we assign and transfer this Security to

      (Insert assignee's social security or tax ID number)


                           --------------------------


                           --------------------------


- --------------------------------------------------------------------------------

- --------------------------------------------------------------------------------

- --------------------------------------------------------------------------------
             (Print or type assignee's name, address, and zip code)

and irrevocably appoint                                                        ,
                        -------------------------------------------------------

- --------------------------------------------------------------------------------

agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.


Date:
     ---------------------------------
Your signature:


- --------------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee:
          ------------------------------

EX-5.1

   1
                                                                     EXHIBIT 5.1


                  [STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]

                                 August 20, 2001

Fidelity National Financial, Inc.
17911 Von Karman Avenue
Irvine, California  93110

        Re:  Public Offering of 7.30% Notes due August 15, 2011

Ladies and Gentlemen:

        We have acted as counsel for Fidelity National Financial, Inc., a
Delaware corporation (the "Company"), in connection with the execution and
delivery by the Company of that certain Underwriting Agreement, dated August 13,
2001 (the "Underwriting Agreement"), by and among the Company and Lehman
Brothers Inc., Banc of America Securities LLC, and Bear Stearns & Co. Inc.
(collectively, the "Underwriters"), pursuant to which the Underwriters severally
agreed to purchase $250,000,000 aggregate principal amount of the Company's
7.30% Notes due August 15, 2011 (the "Notes"). This Opinion is being furnished
in accordance with the requirements of Item 601(b)(5) of Regulation S-K
promulgated under the Securities Act.

        The issuance of the Notes has been registered with the Commission under
the Securities Act pursuant to a Registration Statement filed with the
Commission on March 30, 2001, as amended by Amendment No. 1 thereto filed on
April 19, 2001 (collectively, the "Registration Statement").

        In connection with the preparation of this opinion, we have examined
such documents and considered such questions of law as we have deemed necessary
or appropriate. We have assumed that there are no other documents or agreements
between the Company and the Underwriters which would expand or otherwise modify
the respective rights and obligations of the Company and the Underwriters as set
forth in the Underwriting Agreement and the documents required or contemplated
thereby.

        We have assumed the authenticity of all documents submitted to us as
originals, the conformity with originals of all documents submitted to us as
copies, and the genuineness of all signatures (other than signatures of officers
of the Company). We have also assumed that, with respect to all parties to
agreements or instruments relevant hereto (other than the Company), such parties
had the requisite power and authority to execute, deliver and perform such
agreements or instruments, that such agreements or instruments have been duly
authorized by all requisite action, executed and delivered by such parties, and
that such agreements or instruments are the valid, binding and enforceable
obligations of such parties.

   2

        As to questions of fact material to our opinions, we have relied upon
the representations of each party made in the Underwriting Agreement and the
other documents and certificates delivered in connection therewith, certificates
of officers of the Company, and certificates and advices of public officials.

        Based upon the foregoing, we are of the opinion that the Notes were
validly issued, fully-paid and non-assessable and are the legal, valid and
binding obligations of the Company enforceable against it in accordance with
their terms, except as the enforceability thereof may be subject to or limited
by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium, or other
similar laws relating to or affecting the rights of creditors and (b) general
equitable principles, regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law.

        We consent to the use of this Opinion as an exhibit to the Registration
Statement.

                                        Very truly yours,

                                        STRADLING YOCCA CARLSON & RAUTH


                                        /s/  Stradling Yocca Carlson & Rauth