exv10w34



 






Exhibit 10.34


 


ORACLE CORPORATION




OZARK HOLDING INC.




and




CITIBANK, N.A., Trustee




INDENTURE




Dated as of January 13, 2006




 






 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Certain Terms Defined; Rules of Construction 
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	Securities
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms Generally
	 	 	7	 
	Section 2.02. Form of Trustee’s Certification of Authentication
	 	 	7	 
	Section 2.03. Amount Unlimited; Issuable in Series
	 	 	7	 
	Section 2.04. Authentication and Delivery of Securities
	 	 	10	 
	Section 2.05. Execution of Securities
	 	 	11	 
	Section 2.06. Certificate of Authentication
	 	 	12	 
	Section 2.07. Denomination and Date of Securities; Payments of Interest
	 	 	12	 
	Section 2.08. Registration, Transfer and Exchange
	 	 	13	 
	Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities
	 	 	14	 
	Section 2.10. Cancellation of Securities; Destruction Thereof
	 	 	15	 
	Section 2.11. Temporary Securities
	 	 	15	 
	Section 2.12. Authenticating Agent
	 	 	16	 
	Section 2.13. Global Securities
	 	 	16	 
	Section 2.14. CUSIP Numbers
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	Covenants of the Issuer
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Payment of Principal and Interest
	 	 	19	 
	Section 3.02. Offices for Payments, etc
	 	 	19	 
	Section 3.03. Paying Agents
	 	 	20	 
	Section 3.04. Certificate of the Issuer
	 	 	21	 
	Section 3.05. Reports by the Issuer
	 	 	21	 
	Section 3.06. Limitation on Liens
	 	 	21	 
	Section 3.07. Limitation on Sale and Lease-Back Transactions
	 	 	22	 
	Section 3.08. Existence
	 	 	23	 
	Section 3.09. Certain Definitions
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Remedies of the Trustee and Holders on Event of Default
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Event of Default; Acceleration of Maturity; Waiver of Default
	 	 	26	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt
	 	 	28	 
	Section 4.03. Application of Proceeds
	 	 	31	 
	Section 4.04. Suits for Enforcement
	 	 	32	 
	Section 4.05. Restoration of Rights on Abandonment of Proceedings
	 	 	32	 
	Section 4.06. Limitations on Suits by Holder
	 	 	32	 
	Section 4.07. Unconditional Right of Holders to Institute Certain Suits
	 	 	33	 
	Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
	 	 	33	 
	Section 4.09. Control by Holders
	 	 	33	 
	Section 4.10. Waiver of Past Defaults
	 	 	34	 
	Section 4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
	 	 	34	 
	Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Concerning the Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default
	 	 	35	 
	Section 5.02. Trustee’s Obligations with Respect to the Covenants
	 	 	35	 
	Section 5.03. Moneys Held by Trustee
	 	 	35	 
	Section 5.04. Reports by the Trustee to Holders
	 	 	36	 
	Section 5.05. Certain Rights of the Trustee
	 	 	36	 
	Section 5.06. Trustee and Agents May Hold Securities; Collections, etc
	 	 	37	 
	Section 5.07. Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	38	 
	Section 5.08. Right of Trustee to Rely on Officers’ Certificate, etc
	 	 	38	 
	Section 5.09. Disqualification; Conflicting Interests
	 	 	39	 
	Section 5.10. Persons Eligible for Appointment as Trustee
	 	 	39	 
	Section 5.11. Resignation and Removal; Appointment of Successor Trustee
	 	 	39	 
	Section 5.12. Acceptance of Appointment by Successor
	 	 	40	 
	Section 5.13. Merger, Conversion, Consolidation or Succession to Business of Trustee
	 	 	41	 
	Section 5.14. Preferential Collection of Claims Against the Issuer
	 	 	42	 
	Section 5.15. Indentures Not Creating Potential Conflicting Interests for the Trustee
	 	 	42	 
	Section 5.16. Trustee’s Disclaimer
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Concerning the Holders
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Evidence of Action Taken by Holders
	 	 	42	 
	Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date
	 	 	43	 






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	 	 	Page	 
	Section 6.03. Holders to Be Treated as Owners
	 	 	43	 
	Section 6.04. Securities Owned by Issuer Deemed Not Outstanding
	 	 	43	 
	Section 6.05. Right of Revocation of Action Taken
	 	 	44	 
	ARTICLE 7
	 	 	 	 
	Amendments, Supplements and Waivers
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Supplemental Indentures without Consent of Holders
	 	 	44	 
	Section 7.02. Supplemental Indentures with Consent of Holders
	 	 	45	 
	Section 7.03. Execution of Amendments or Supplemental Indentures or Waivers
	 	 	46	 
	Section 7.04. Effect of Amendment, Supplemental Indenture or Waiver
	 	 	47	 
	Section 7.05. Effect of Consent
	 	 	47	 
	Section 7.06. Notation on Securities in Respect of Amendments, Supplemental Indentures or Waivers
	 	 	47	 
	Section 7.07. Conformity with the Trust Indenture Act
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Consolidation, Merger, Sale or Conveyance
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Consolidation, Merger or Sale of Assets by the Issuer
	 	 	48	 
	Section 8.02. Successor Corporation Substituted
	 	 	48	 
	Section 8.03. Discharge Event
	 	 	49	 
	Section 8.04. Opinion of Counsel to Trustee
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Defeasance and Discharge; Unclaimed Moneys
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Satisfaction and Discharge of Indenture

	 	 	49	 
	Section 9.02. Legal Defeasance

	 	 	50	 
	Section 9.03. Covenant Defeasance

	 	 	52	 
	
Section 9.04. Application by Trustee of Funds Deposited for Payment of Securities
	 	 	52	 
	Section 9.05. Repayment of Moneys Held by Paying Agent
	 	 	52	 
	Section 9.06. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Miscellaneous Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Incorporators, Stockholders, Employees, Officers and Directors of Issuer Exempt from Individual Liability
	 	 	53	 
	Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Holders
	 	 	53	 
	Section 10.03. Successors and Assigns of Issuer Bound by Indenture
	 	 	53	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 10.04. Notices and Demands on Issuer, Trustee and Holders
	 	 	53	 
	Section 10.05. Officers’ Certificates and Opinions of Counsel; Statements to Be Contained Therein
	 	 	54	 
	Section 10.06. Payments Due on Saturdays, Sundays and Holidays
	 	 	55	 
	Section 10.07. Trust Indenture Act of 1939
	 	 	55	 
	Section 10.08. New York Law to Govern
	 	 	55	 
	Section 10.09. Counterparts
	 	 	56	 
	Section 10.10. Effect of Headings
	 	 	56	 
	Section 10.11. Separability
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Redemption of Securities and Sinking Fund Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Applicability of Article
	 	 	56	 
	Section 11.02. Notice of Redemption; Partial Redemptions
	 	 	56	 
	Section 11.03. Payment of Securities Called for Redemption
	 	 	57	 
	Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption
	 	 	58	 
	Section 11.05. Mandatory and Optional Sinking Funds
	 	 	58	 






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     THIS INDENTURE, dated as of January 13, 2006 among ORACLE CORPORATION (the “Company”), OZARK
HOLDING INC., a wholly owned subsidiary of the Company (the “Co-Issuer”), and CITIBANK, N.A. (the
“Trustee”),



W I T N E S S E T H:




     WHEREAS, for its lawful corporate purposes, each of the Company and the Co-Issuer has duly
authorized the execution and delivery of the Indenture to provide for the issuance of unsecured
debt securities in one or more series (the “Securities”) up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of the Indenture and to provide,
among other things, for the authentication, delivery and administration thereof;



     WHEREAS, all things necessary to make the Indenture a valid indenture and agreement according
to its terms have been done;



     WHEREAS, the Indenture is subject to, and will be governed by, the provisions of the Trust
Indenture Act of 1939 (the “Trust Indenture Act”) that are required to be a part of and govern
indentures qualified under the Trust Indenture Act; and



     WHEREAS, in connection, with the Company’s pending acquisition of Siebel Systems, Inc., the
Company plans to cause a wholly owned subsidiary of the Co-Issuer to be merged with and into the
Company, with the Company surviving as a wholly owned subsidiary of the Co-Issuer.



     NOW, THEREFORE, in consideration of the premises and the purchases of the Securities by the
holders thereof, the Company, the Co-Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of the Securities as
follows:



ARTICLE 1

Definitions




     Section 1.01. Certain Terms Defined; Rules of Construction. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of
the Indenture and of any indenture supplemental hereto shall have the respective meanings specified
in this Section. All other terms used in the Indenture that are defined in the Trust Indenture
Act, or the definitions of which are referred to in the Trust Indenture Act, including terms
defined therein by reference to the Securities Act (except as herein otherwise expressly provided
or unless the context otherwise clearly requires), shall have the meanings assigned to such terms
in the Trust Indenture Act and in the Securities Act as in force at the date of the Indenture. All
accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term



 









 




“generally accepted accounting principles” means such accounting principles as are generally accepted at the time of
any computation. The words “herein”, “hereof” and “hereunder” and other words of similar import refer to the Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular. Except
as otherwise expressly provided or unless the context otherwise clearly requires, references to
agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or
statutes or regulations, as amended from time to time (or to successor statutes and regulations).




     “Agent Member” means a member of, or a participant in, the Depositary.



     “Aggregate Debt” has the meaning assigned to such term in Section 3.09.



     “Attributable Liens” has the meaning assigned to such term in Section 3.09.



     “Authenticating Agent” means an authenticating agent with respect to any of the series of
Securities appointed with respect to all or any series of the Securities by the Trustee pursuant to
Section 2.12.



     “Bankruptcy Law” means Title 11 of the United States Code or any similar Federal or State law
for the relief of debtors.



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



     “Business Day” means, with respect to any Security, a day that in the Borough of Manhattan,
City of New York is not a day on which banking institutions are authorized by law or regulation to
close.



     “Capital Lease” has the meaning assigned to such term in Section 3.09.



     “Co-Issuer” means Ozark Holding Inc. or any successor obligor under the Indenture and the
Securities pursuant to Article 8.



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



     “Company” means Oracle Corporation or any successor obligor under the Indenture and the
Securities pursuant to Article 8.



     “company” means a corporation or a limited liability company.



2









 





     “Consolidated Net Worth” has the meaning assigned to such term in Section 3.09.



     “Consolidated Subsidiary” has the meaning assigned to such term in Section 3.09.



     “Corporate Trust Office” means the office of the Trustee (i) for bond transfer purposes and
for purposes of presentment and surrender of the Securities for the final distributions thereon is
111 Wall Street, 15th Floor, New York, New York 10005, Attention: Window and (ii) for all other
purposes is 388 Greenwich Street, 14th Floor, New York, New York 10013, Attention: Agency and
Trust, Oracle Corporation Fixed and Floating Rate Notes.



     “Depositary” means, with respect to Securities of any series, for which the Issuer shall
determine that such Securities will be issued as a Global Security, the Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each case, shall be
designated by the Issuer pursuant to either Section 2.01 or 2.13.



     “Discharge Event” means either (a) the consummation of the Reorganization or (b) a
determination by an authorized officer of the Company not to complete the Reorganization.



     “Event of Default” has the meaning assigned to such term in Section 4.01.



     “Exchange Act” means the Securities Exchange Act of 1934.



     “GAAP” has the meaning assigned to such term in Section 3.09.



     “Global Security” means, with respect to any series of Securities, a Security executed by the
Issuer and delivered by the Trustee to the Depositary or pursuant to a safekeeping agreement with
the Depositary, all in accordance with the Indenture, which shall be registered in global form
without interest coupons in the name of the Depositary or its nominee.



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



3









 







such custodian for the account of the holder of such depositary receipt; provided
however, that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of
or interest on the Governmental Obligation evidenced by such depositary receipt.



     “Hedging Obligations” has the meaning assigned to such term in Section 3.09.



     “Holder” means the registered holder of any Security.



     “Indebtedness” has the meaning assigned to such term in Section 3.09.



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



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



     “Issue Date” means the date on which the Securities are originally issued.



     “Issuer” means, unless otherwise explicitly provided herein, each of the Company and the
Co-Issuer until the consummation of the Discharge Event, from which time the “Issuer” shall mean
solely the Remaining Obligor.



     “Issuer Order” has the meaning assigned to such term in Section 2.04.



     “Lien” has the meaning assigned to such term in Section 3.09.



     “Merger Sub” has the meaning assigned to such term in Section 8.03.



     “Notice of Default” has the meaning assigned to such term in Section 4.01(d).



     “Officers’ Certificate” means a certificate signed in the name of the Issuer by any two of the
following officers: the chairman of the Board of Directors, the chief executive officer, the chief
financial officer, any president, any executive vice president, the treasurer or the secretary of
the Issuer.



     “Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an
employee of or counsel to the Issuer.



4









 





     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.01.



     “Outstanding”, when used with reference to Securities, shall, subject to the provisions of
Section 6.04, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under the Indenture, except:



     (a) Securities cancelled by the Trustee or accepted by the Trustee for cancellation;




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



     (c) Securities in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the terms of
Section 2.09 unless and until the Trustee and the Issuer receive proof satisfactory to them
that the substituted Security is held by a bona fide purchaser.



     In determining whether the holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 4.01.



     “Permitted Liens” has the meaning assigned to such term in Section 3.09.



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



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



     “Property” has the meaning assigned to such term in Section 3.09.



5









 





     “Reorganization” has the meaning assigned to it in Section 8.03.



     “Register” has the meaning assigned to it in Section 2.08.



     “Registrar” means a Person engaged to maintain the Register.



     “Remaining Obligor” means the sole obligor under the Indenture and the Securities following a
Discharge Event. If the Reorganization occurs, the Co-Issuer will be the Remaining Obligor; if the
Reorganization does not Occur, the Company will be the Remaining Obligor.



     “Resolution of the Board of Directors” means a copy of the resolution certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.



     “Responsible Officer” when used with respect to the Trustee means any officer of the Trustee
within the Corporate Trust Office of the Trustee with direct responsibility for the administration
of the Indenture and also, with respect to a particular matter, any other officer of the Trustee to
whom such matter is referred because of such officer’s knowledge and familiarity with the
particular subject.



     “Securities Act” means the Securities Act of 1933.



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



     “Senior Officer” has the meaning assigned to such term in Section 3.09.



     “Stockholders’ Equity” has the meaning assigned to such term in Section 3.09.



     “Subsidiary” has the meaning assigned to such term in Section 3.09.



     “Surviving Entity” has the meaning assigned to it in Section 8.01.



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and any
successor trustee under the Indenture pursuant to Article 5.



     “Trust Indenture Act” means the Trust Indenture Act of 1939.



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



6









 





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



ARTICLE 2

Securities




     Section 2.01. Forms Generally. The Securities of each series shall be substantially in such
form (not inconsistent with the Indenture) as shall be established by or pursuant to a Resolution
of the Board of Directors and set forth in an Officers’ Certificate, 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 the Indenture and may have imprinted or otherwise
reproduced thereon such legends, notations or endorsements as may be required to comply with any
law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange
or to conform to general usage, all as may be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.



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



     Section 2.02. Form of Trustee’s Certification of Authentication. The Trustee’s certificate
of authentication on all Securities shall be in substantially the following form:



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



	 	 	 	 	 	 	 
	 	 	CITIBANK, N.A.,  
	 

	 	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	by:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






     Section 2.03. Amount Unlimited; Issuable in Series. Subject to compliance with the
representations, warranties and covenants set forth herein, in the Officers’ Certificate, in any
indenture supplemental hereto and in any amendment hereto or thereto, the aggregate principal
amount of Securities which may be authenticated and delivered under the Indenture is unlimited.



7









 





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




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




     (b) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under the Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);




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




     (d) the rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate shall be determined, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest shall be
payable and the record dates for the determination of Holders to whom interest is payable
on such Interest Payment Dates;




     (e) the right, if any, to extend the interest payment periods and the duration of such
extension;




     (f) the place or places where the principal of and any interest on Securities of the
series shall be payable (if other than as provided in Section 3.02);




     (g) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, pursuant to any sinking fund or otherwise;




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




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



8









 






     (j) the percentage of the principal amount at which the Securities will be issued,
and, if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section
4.02;




     (k) whether the Securities are issuable under Rule 144A or Regulation S and, in such
case, any provisions unique to such form of issuance including any transfer restrictions or
exchange and registration rights;




     (l) any and all other terms of the series (which terms shall not be inconsistent with
the provisions of the Indenture) including any terms which may be required by or advisable
under U.S. law or regulations or advisable in connection with the marketing of Securities
in that series;




     (m) whether the Securities are issuable as a Global Security and, in such case, the
identity for the Depositary for such series;




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




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




     (p) whether and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Issuer will
have the option to redeem the Securities of the series rather than pay such additional
amounts;




     (q) any special tax implications of the notes, including provisions for Original Issue
Discount Securities;




     (r) any trustees, authenticating or paying agents, transfer agents or registrars or
any other agents with respect to the Securities of such series;




     (s) any guarantor or co-issuer of the Securities of the series;




     (t) any special interest premium or other premium;




     (u) whether the Securities are convertible or exchangeable into common stock or other
equity securities of the Issuer or a combination thereof and the terms and conditions upon
which such conversion or exchange shall be effected; and



9









 






     (v) the currency in which payments shall be made, if other than U.S. dollars.



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such Resolution of the Board of Directors
and set forth in an Officers’ Certificate, or in any 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 for issuance of additional Securities of such series. Additional Securities of such
series will be consolidated with, and form a single series with, Securities then Outstanding of
such series.



     Any additional Securities shall be established in or pursuant to a Resolution of the Board of
Directors and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series the following information:




     (i) the aggregate principal amount of such additional Securities to be authenticated
and delivered pursuant to the Indenture;




     (ii) the issue price, the issue date and the CUSIP number of such additional
Securities provided, however, that no additional Securities may be issued at a price that
would cause such Securities to have “original issue discount” within the meaning of Section
1273 of the Internal Revenue Code; and




     (iii) whether such additional Securities shall be transfer restricted Securities or
have any registration or exchange rights.



     Section 2.04.
 Authentication and Delivery of Securities. At any time and from time to time
after the execution and delivery of the Indenture, the Issuer may deliver Securities of any series
executed by the Issuer to the Trustee for authentication, together with a written order of the
Issuer, signed in the name of the Issuer by any two of the following officers: the chairman of the
Board of Directors, the chief executive officer, the chief financial officer, any president, any
executive vice president, the treasurer or the secretary of the Issuer (an “Issuer Order”). The
Trustee, in accordance with such written order, shall authenticate and deliver such Securities.



     In authenticating such Securities and accepting the additional responsibilities under the
Indenture in relation to such Securities, the Trustee shall be entitled to receive and (subject to
Section 5.01) shall be fully protected in relying upon:




     (a) a certified copy of any resolution or resolutions of the Board of Directors
authorizing the action taken pursuant to the resolution or resolutions delivered under
clause 2.04(b) below;



10









 






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




     (c) an executed supplemental indenture, if any;




     (d) in lieu of a supplemental indenture, an Officers’ Certificate setting forth the
form and terms of the Securities as required pursuant to Section 2.01 and 2.03,
respectively, and prepared in accordance with Section 10.05;




     (e) an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect
that




     (i) that the form or forms and terms of such Securities have been established
by or pursuant to a Resolution of the Board of Directors and set forth in an
Officers’ Certificate, or by a supplemental indenture as permitted by Section 2.01
and 2.03 in conformity with the provisions of the Indenture; and




     (ii) that such Securities, when authenticated and delivered by the Trustee and
issued by the Issuer in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the Issuer
entitled to the benefits of the Indenture, and enforceable against the Issuer in
accordance with their terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws now or hereafter in effect relating to creditor’s rights
generally, and general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).



     The Trustee shall have the right to decline to authenticate and deliver any Securities under
this section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal liability.



     Section 2.05.
 Execution of Securities. The Securities shall be signed in the name of the
Issuer by any two of the following officers: the chairman of the Board of Directors, the chief
executive officer, the chief financial officer, any president, any executive vice president, the
treasurer or the secretary of the Issuer. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. Typographical and other minor errors or
defects in any such signature shall not affect the validity or



11









 







enforceability of any Security that has been duly authenticated and delivered by the Trustee.



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



     Section 2.06.  Certificate of Authentication. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form recited herein, executed by the Trustee by
the manual signature of one of its authorized officers, shall be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of
the Indenture.



     Section 2.07.
 Denomination and Date of Securities; Payments of Interest. The Securities
shall be issuable as registered securities without coupons and in denominations as shall be
specified as contemplated by Section 2.03. In the absence of any such specification with respect
to the Securities of any series, the Securities of such series shall be issuable in denominations
of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.



     The principal of and the interest on the Securities of any series, shall be payable in the
coin or currency of the United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Issuer maintained for that purpose.



     Each Security shall be dated the date of its authentication, shall bear interest, if any, from
the date and shall be payable on the dates, in each case, established as contemplated by Section
2.03.



     The person in whose name any Security of any series is registered at the close of business on
any record date applicable to a particular series with respect to any interest payment date for
such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer or exchange of such Security subsequent to the record date and
prior to such interest payment date, except if and to the extent the Issuer shall default in the
payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in



12









 







whose names Outstanding Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders not less than 15 days preceding such subsequent record date. The term
“record date” as used with respect to any interest payment date (except a date for payment of
defaulted interest) shall mean the date specified as such in the terms of the Securities of any
particular series, or, if no such date is so specified, if such interest payment date is the first
day of a calendar month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.



     Section 2.08.  Registration, Transfer and Exchange. The Issuer may appoint one or more
Registrars. The Issuer initially appoints the Trustee as Registrar. The Issuer will keep or cause
to be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a
register or registers (the “Register”) in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Securities as in this Article
provided. The Register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all reasonable times the
Register shall be open for inspection by the Trustee.



     Upon due presentation for registration of transfer of any Security of any series at any such
office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series in authorized denominations for a like aggregate
principal amount.



     Any Security or Securities of any series may be exchanged for a Security or Securities of the
same series in other authorized denominations, in an equal aggregate principal amount. Securities
of any series to be exchanged shall be surrendered at any office or agency to be maintained by the
Issuer for the purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities of the same series
which the Holder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously Outstanding.



     All Securities presented for registration of transfer, exchange, redemption or payment shall
(if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder or his attorney duly authorized in writing, together with signature
guarantees for such holder or attorney.



     The Issuer or the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange



13









 







or registration of transfer of Securities. No service charge shall be made for any such
transaction.



     Neither the Issuer nor the Trustee shall be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days preceding the first mailing of notice of
redemption of Securities of such series to be redeemed, or (b) any Securities selected, called or
being called for redemption except, in the case of any Security where public notice has been given
that such Security is to be redeemed in part, the portion thereof not so to be redeemed.



     In addition to the transfer requirements provided in this Section 2.08, any Security or
Securities will be subject to such further transfer restrictions as may be contained in an
Officers’ Certificate or indenture supplemental hereto applicable to such series of Securities.



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



     Section 2.09.
 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen,
the Issuer in its discretion may execute, and upon the receipt of an Issuer Order, the Trustee
shall authenticate and deliver, a new Security of the same series, bearing a number not
contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence
to their satisfaction of the destruction, loss or theft of such Security and of the ownership
thereof.



     Upon the issuance of any substitute Security, the Issuer or the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as any of them may require to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Security and of the ownership thereof. In case the mutilated, deleted,



14









 







destroyed, or lost or stolen Security has become or is about to become due and payable, the
Issuer in its discretion may pay the Security instead of issuing a substitute Security.



     Every substitute Security of any series issued pursuant to the provisions of this section by
virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) the Indenture equally and
proportionately with any and all other Securities of such series duly authenticated and delivered
hereunder. All Securities shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other securities without
their surrender.



     Section 2.10.
 Cancellation of Securities; Destruction Thereof. All Securities surrendered
for payment, redemption, registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of the Indenture. On written request of the Issuer at the time
of such surrender, the Trustee shall deliver to the Issuer the Securities cancelled by the Trustee.
In the absence of such request, the Trustee shall destroy cancelled Securities held by it and
deliver a certificate of destruction to the Issuer. If the Issuer shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee for
cancellation.



     Section 2.11.
 Temporary Securities. Pending the preparation of definitive Securities for
any series, the Issuer may execute and the Trustee shall, upon receipt of an Issuer Order,
authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten
or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities
of any series shall be issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may
contain such reference to any provisions of the Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may be surrendered in



15









 







exchange therefor without charge at each office or agency to be maintained by the Issuer for
that purpose pursuant to Section 3.02, and the Trustee shall, upon receipt of an Issuer Order,
authenticate and deliver in exchange for such temporary Securities of such series a like aggregate
principal amount of definitive Securities of the same series of authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the same benefits under the
Indenture as definitive Securities of such series.



     Section 2.12. Authenticating Agent. So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of Securities which the
Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of
the Indenture and shall be valid and binding for all purposes as if authenticated by the Trustee
hereunder. All references in the Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Issuer and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which it is doing business to conduct a
trust business, and that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall
resign immediately. Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time (and upon written
request by the Issuer shall) terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Issuer. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Issuer. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights,
powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent
pursuant hereto.



     Section 2.13. Global Securities. If the Issuer shall establish pursuant to Section 2.01
that the Securities of a particular series are to be issued as a Global Security, then the Issuer
shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a
Global Security that shall (i) represent, and be issued in a denomination or aggregate
denominations equal to the aggregate principal amount of all the Securities to be represented by a
Global Security, (ii) be registered in the name of the Depositary or its nominee, (iii) be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv)
bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.13
of the Indenture, this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such successor
Depositary.”



16









 





     Notwithstanding the provisions of Section 2.08, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.08, only to another
nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Issuer or to a nominee of such successor Depositary.



     Ownership of beneficial interests in a registered global security will be limited to Agent
Members that have accounts with the Depositary or persons that may hold interests through Agent
Members. Upon the issuance of a registered Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the Agent Members accounts with the respective
principal or face amounts of the securities beneficially owned by the participants. Any dealers,
underwriters or agents participating in the distribution of the Securities will designate the
accounts to be credited. Ownership of beneficial interests in a Global Security will be shown on,
and the transfer of ownership interests will be effected only through, records maintained by the
Depositary, with respect to interests of Agent Members, and on the records of Agent Members, with
respect to interests of persons holding through Agent Members.



     So long as the Depositary, or its nominee, is the registered owner of a registered Global
Security, that Depositary or its nominee, as the case may be, will be considered the sole owner or
Holder of the Securities represented by the Global Security for all purposes under the Indenture.
Except as described in this Section 2.13, Agent Members will not be entitled to have the Securities
represented by the Global Security registered in their names, will not receive or be entitled to
receive physical delivery of the Securities in definitive form and will not be considered the
owners or Holders of the Securities under the Indenture. Accordingly, each Agent Member owning a
beneficial interest in a registered Global Security must rely on the procedures of the Depositary
for that registered Global Security and, if that person is not an Agent Member, on the procedures
of the Agent Member through which the person owns its interest, to exercise any rights of a Holder
under the Indenture. Notwithstanding the foregoing, the Depositary or its nominee may grant
proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a
beneficial interest in a Global Security through an Agent Member) to take any action which a Holder
is entitled to take under the Indenture or the Securities, and nothing herein will impair, as
between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.



     Principal, premium, if any, and interest payments on Securities represented by a Global
Security registered in the name of the Depositary or its nominee will be made to the Depositary or
its nominee, as the case may be, as the registered owner of the registered Global Security. None
of the Issuer, the Trustee or any other agent of the Issuer, or any agent of the Trustee will have
any responsibility or liability for any aspect of the records relating to payments made on account
of beneficial ownership interests in



17









 







the registered Global Security or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.



     If at any time the Depositary for a series of the Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition,
as the case may be, this Section 2.13 shall no longer be applicable to the Securities of such
series and the Issuer will execute, and subject to Section 2.08, the Trustee will authenticate and
deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the Issuer may at any
time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.13 shall no longer apply to the Securities of
such series. In such event the Issuer will execute and subject to Section 2.08, the Trustee, upon
receipt of an Officers’ Certificate evidencing such determination by the Issuer, will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the principal amount of the
Global Security of such series in exchange for such Global Security. Upon the exchange of the
Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be cancelled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global Security pursuant to this Section 2.13
shall be registered in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee
in writing. The Issuer and the Trustee shall be entitled to conclusively rely on such instructions
from the Depositary. The Trustee shall deliver such Securities to the Depositary for delivery to
the Persons in whose names such Securities are so registered.



     Section 2.14. CUSIP Numbers. The Issuer in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing
of any change in the “CUSIP” numbers.



18









 





ARTICLE 3

Covenants of the Issuer




     Section 3.01.
 Payment of Principal and Interest. (a) The Issuer covenants and agrees for
the benefit of each series of Securities that it will duly and punctually pay or cause to be paid
the principal of, and interest on, each of the Securities of such series at the place or places, at
the respective times and in the manner provided in such Securities. Unless otherwise provided in
the Securities of any series, not later than 10:00 A.M. (New York City time) on the due date of any
principal of or interest on any Securities, the Issuer will deposit with the Trustee (or paying
agent) money in immediately available funds sufficient to pay such amounts, provided that
if the Issuer or any affiliate of the Issuer is acting as paying agent, it will, on or before each
due date, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in
the Indenture. In each case the Issuer will promptly notify the Trustee of its compliance with
this paragraph.



     (b) An installment of principal or interest will be considered paid on the date due if the
Trustee (or paying agent, other than the Issuer or any affiliate of the Issuer) holds on that date
money designated for and sufficient to pay the installment. If the Issuer or any affiliate of the
Issuer acts as paying agent, an installment of principal or interest will be considered paid on the
due date only if paid to the Holders.



     (c) Payments in respect of the Securities represented by the Global Security are to be made by
wire transfer of immediately available funds to the accounts specified by the Holder of the Global
Security. With respect to certificated Securities, the Issuer will make all payments by wire
transfer of immediately available funds to the accounts specified by the Holders thereof or, if no
such account is specified, by mailing a check to each Holder’s registered address.



     (d) The obligation of the Company and the Co-Issuer under this Section 3.01 are joint and
several. In no event shall this Section 3.01 be deemed to require either Issuer to pay, deposit or
segregate and hold in a separate trust fund the money payable pursuant to this section to the
extent the other Issuer shall have fulfilled the Issuer’s obligations under this Section 3.01.



     Section 3.02.
 Offices for Payments, etc. So long as any of the Securities remain
Outstanding, the Issuer will maintain in New York City, the following for each series: an office or
agency (a) where the Securities may be presented for payment, (b) where the Securities may be
presented for registration of transfer and for exchange as in the Indenture provided and (c) where
notices and demands to or upon the Issuer in respect of the Securities or of the Indenture may be
given or served. The Issuer will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. Unless otherwise specified in accordance
with Section 2.03, the Issuer



19









 







hereby initially designates the Corporate Trust Office of Citibank, N.A. at 111 Wall Street,
15th Floor, New York, New York 10005, Attention: Window, as the office to be maintained
by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such
office or agency or shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the applicable
Corporate Trust Office of the Trustee and the Issuer hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands.



     Section 3.03.
 Paying Agents. Whenever the Issuer shall appoint a paying agent other than
the Trustee with respect to the Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,



     (a) that it will hold all sums received by it as such agent for the payment of the principal
of or interest on the Securities of such series (whether such sums have been paid to it by the
Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the
holders of the Securities of such series or of the Trustee,



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



     (c) pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request
at any time during the continuance of the failure referred to in clause 3.03(b) above, and



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



     The Issuer shall, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the Trustee) the Issuer shall promptly
notify the Trustee of any failure to take such action.



     If an Issuer shall act as its own paying agent with respect to the Securities of any Series,
it will, on or before each due date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of
such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.



     Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the



20









 








Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



     The obligation of the Company and the Co-Issuer under this Section 3.03 are joint and several.
In no event shall this Section 3.03 be deemed to require either Issuer to pay, deposit or
segregate and hold in a separate trust fund the money payable pursuant to this section to the
extent the other Issuer shall have fulfilled the Issuer’s obligations under this Section 3.03.



     Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this section is subject to the provisions of Section 9.05 and 9.06.



     Section 3.04.
 Certificate of the Issuer. The Issuer will furnish to the Trustee on or
before 120 days after the end of each fiscal year (beginning with the fiscal year ended May 31,
2006) a brief certificate (which need not comply with Section 10.05) from the principal executive,
financial or accounting officer or the Treasurer of the Issuer as to his or her knowledge of the
Issuer’s compliance with all conditions and covenants under the Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice provided under the
Indenture), or if there has been a default, specifying the default and its nature and status.



     Section 3.05.
 Reports by the Issuer. The Issuer covenants to comply with Section 314(a) of
the Trust Indenture Act insofar as it relates to information, documents, and other reports which
the Issuer may be required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act.



     Section 3.06.
 Limitation on Liens. (a) With respect to each series of notes, the Issuer
covenants not to create or incur any Lien on any of its Properties, whether now owned or hereafter
acquired, or upon any income or profits therefrom, in order to secure any of its Indebtedness,
without effectively providing that such series of Securities shall be equally and ratably secured
until such time as such Indebtedness is no longer secured by such Lien, except:




     (i) Liens existing as of the closing date of the offering of the Securities;




     (ii) Liens granted after the closing date of the offering of such series of Securities
created in favor of the holders of such series of Securities;




     (iii) Liens securing the Issuer’s Indebtedness which are incurred to extend, renew or
refinance Indebtedness which is secured by Liens permitted to be incurred under the
indenture;



21









 






     (iv) Liens created in substitution of or as replacements for any Liens permitted by
(i), (ii), (iii) or (iv) of this Section 3.06, provided that, based on a good faith
determination of one the Issuer’s Senior Officers, the Property encumbered under any such
substitute or replacement Lien is substantially similar in nature to the Property
encumbered by the otherwise permitted Lien which is being replaced; and




     (v) Permitted Liens.



     (b) Notwithstanding Section 3.06(a), the Issuer may, without securing any series of
Securities, create or incur Liens which would otherwise be subject to the restrictions set forth in
the Section 3.06(a), if after giving effect thereto, Aggregate Debt does not exceed the greater of
(i) 25% of Consolidated Net Worth calculated as of the date of the creation or incurrence of the
Lien or (ii) 25% of Consolidated Net Worth calculated as of the date of the issuance of such series
of Securities.



     Section 3.07.
 Limitation on Sale and Lease-Back Transactions. (a) The Issuer covenants not
to enter into any sale and lease-back transaction for the sale and leasing back of any Property,
whether now owned or hereafter acquired, unless:




     (i) such transaction was entered into prior to the closing date of the offering of
such series of Securities;




     (ii) such transaction was for the sale and leasing back to the Issuer of any Property
by one of its Subsidiaries;




     (iii) such transaction involves a lease for less than three years;




     (iv) the Issuer would be entitled to incur Indebtedness secured by a mortgage on the
property to be leased in an amount equal to the Attributable Liens with respect to such
sale and lease-back transaction without equally and ratably securing the notes pursuant to
Section 3.06(a) above; or




     (v) the Issuer applies an amount equal to the fair value of the Property sold to the
purchase of Property or to the retirement of its long-term Indebtedness within 365 days of
the effective date of any such sale and lease-back transaction. In lieu of applying such
amount to such retirement, the Issuer may deliver debt securities to the trustee therefor
for cancellation, such debt securities to be credited at the cost thereof to the Issuer.



     (b) Notwithstanding Section 3.07(a), the Issuer may enter into any sale lease-back transaction
which would otherwise be subject to the foregoing restrictions if after giving effect thereto and
at the time of determination, Aggregate Debt does not exceed the greater of (i) 25% of Consolidated
Net Worth calculated as of the closing date of the



22









 







sale-leaseback transaction or (ii) 25% of Consolidated Net Worth calculated as of the date of
the issuance of such series of Securities.



     Section 3.08. Existence. Except as permitted under Article 8, the Issuer covenants to do or
cause to be done all things necessary to preserve and keep in full force and effect its existence,
rights and franchises; provided, however, that the Issuer shall not be required to
preserve any right or franchise if it determines that its preservation is no longer desirable in
the conduct of business.



     Section 3.09. Certain Definitions. As used in Sections 3.06, 3.07 and 3.08, the following
terms have the meanings set forth below.



     “Aggregate Debt” means the sum of the following as of the date of determination:



     (1) the aggregate principal amount of the Issuer’s Indebtedness incurred after the closing
date and secured by Liens not permitted by the first sentence under Section 3.06(a), and



     (2) the Issuer’s Attributable Liens in respect of sale and lease-back transactions entered
into after the closing date pursuant to Section 3.07(b).



     “Attributable Liens” means in connection with a sale and lease-back transaction the lesser of:



     (1) the fair market value of the assets subject to such transaction; and



     (2) the present value (discounted at a rate per annum equal to the average interest borne by
all Outstanding Securities of each series issued under the Indenture determined on a weighted
average basis and compounded semi-annually) of the obligations of the lessee for rental payments
during the term of the related lease.



     “Capital Lease” means any Indebtedness represented by a lease obligation of a Person incurred
with respect to real property or equipment acquired or leased by such Person and used in its
business that is required to be recorded as a capital lease in accordance with GAAP.



     “Consolidated Net Worth” means, as of any date of determination, the Stockholders’ Equity of
the Issuer and its Consolidated Subsidiaries on that date.



     “Consolidated Subsidiary” means, as of any date of determination and with respect to any
Person, any Subsidiary of that Person whose financial data is, in accordance with GAAP, reflected
in that Person’s consolidated financial statements.



23









 





     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Public Company Accounting Oversight Board (United States) and statements and
pronouncements of the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting profession, which are
in effect as of the date of determination.



     “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:



     (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed),
interest rate cap agreements and interest rate collar agreements;



     (2) other agreements or arrangements designed to manage interest rates or interest rate risk;



     (3) other agreements or arrangements designed to protect such Person against fluctuations in
currency exchange rates or commodity prices; and



     (4) other agreements or arrangements designed to protect such person against fluctuations in
equity prices.



     “Indebtedness” of any specified Person means, without duplication, any indebtedness, whether
or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements with respect thereto) or representing
the balance deferred and unpaid of the purchase price of any Property (including pursuant to
Capital Leases), except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness would appear as a liability upon an
unconsolidated balance sheet of such Person (but does not include contingent liabilities which
appear only in a footnote to a balance sheet).



     “Lien” means any lien, security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).



     “Permitted Liens” means:



     (1) Liens on any of the Issuer’s assets, created solely to secure obligations incurred to
finance the refurbishment, improvement or construction of such asset, which obligations are
incurred no later than 24 months after completion of such refurbishment, improvement or
construction, and all renewals, extensions, refinancings, replacements or refundings of such
obligations;



     (2) (a) Liens given to secure the payment of the purchase price incurred in connection with
the acquisition (including acquisition through merger or consolidation)



24









 







of Property (including shares of stock), including Capital Lease transactions in connection
with any such acquisition, and (b) Liens existing on Property at the time of acquisition thereof or
at the time of acquisition by the Issuer of any Person then owning such Property whether or not
such existing Liens were given to secure the payment of the purchase price of the Property to which
they attach; provided that, with respect to clause (a), the Liens shall be given within 24 months
after such acquisition and shall attach solely to the Property acquired or purchased and any
improvements then or thereafter placed thereon;



     (3) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;



     (4) Liens securing reimbursement obligations with respect to letters of credit that encumber
documents and other Property relating to such letters of credit and the products and proceeds
thereof;



     (5) Liens encumbering customary initial deposits and margin deposits and other Liens in the
ordinary course of business, in each case securing Hedging Obligations and forward contract,
option, futures contracts, futures options, equity hedges or similar agreements or arrangements
designed to protect the Issuer from fluctuations in interest rates, currencies, equities or the
price of commodities;



     (6) pre-existing Liens on assets acquired by the Issuer after the closing date of the offering
of such series of Securities;



     (7) Liens in the Issuer’s favor;



     (8) inchoate Liens incident to construction or maintenance of real property, or Liens incident
to construction or maintenance of real property, now or hereafter filed of record for sums not yet
delinquent or being contested in good faith, if reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made therefore;



     (9) statutory Liens arising in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith, if reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefore;



     (10) Liens consisting of pledges or deposits to secure obligations under workers’ compensation
laws or similar legislation, including Liens of judgments thereunder which are not currently
dischargeable;



     (11) Liens consisting of pledges or deposits of Property to secure performance in connection
with operating leases made in the ordinary course of business to which the Issuer is a party as
lessee, provided the aggregate value of all such pledges and deposits



25









 







in
connection with any such lease does not at any time exceed 16 2/3% of the annual fixed rentals
payable under such lease;



     (12) Liens consisting of deposits of Property to secure the Issuer’s statutory obligations in
the ordinary course of its business;



     (13) Liens consisting of deposits of Property to secure (or in lieu of) surety, appeal or
customs bonds in proceedings to which the Issuer is a party in the ordinary course of its business,
but not in excess of $25,000,000; and



     (14) purchase money Liens or purchase money security interests upon or in any Property
acquired or held by the Issuer in the ordinary course of business to secure the purchase price of
such Property or to secure indebtedness incurred solely for the purpose of financing the
acquisition of such Property.



     “Property” means any property or asset, whether real, personal or mixed, or tangible or
intangible, including shares of capital stock.



     “Senior Officer” of any specified Person means the chief executive officer, any president, any
vice president, the chief financial officer, the treasurer, any assistant treasurer, the secretary
or any assistant secretary.



     “Stockholders’ Equity” means, as of any date of determination, stockholders’ equity as
reflected on the most recent consolidated balance sheet available to the Issuer prepared in
accordance with GAAP.



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



ARTICLE 4

Remedies of the Trustee and Holders on Event of Default




     Section 4.01.
 Event of Default; Acceleration of Maturity; Waiver of Default. An “Event of
Default” with respect to Securities of any series means the occurrence of one or more 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):



26









 





     (a) default in the payment of any installment of interest upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of such default for a
period of 30 days or more;



     (b) default in the payment of the principal, or premium, if any, on any of the Securities of
such series as and when the same shall become due and payable either at maturity, upon redemption,
by declaration or otherwise;



     (c) default in the payment of any sinking fund installment as and when the same shall become
due and payable by the terms of the Securities of such series;



     (d) default in the performance, or breach, of any covenant or warranty of the Issuer in
respect of the Securities of such series (other than defaults pursuant to paragraphs (a) and (b)
above), and continuance of such default or breach for a period of 90 days or more after there has
been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of all
series affected thereby, 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;



     (e) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days;



     (f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer or for any substantial part of its property, or make any general assignment for the benefit
of creditors; or



     (g) any other Event of Default provided in the Officers’ Certificate, supplemental indenture
or Resolution of the Board of Directors under which such series of Securities is issued or in the
form of Security for such series.



     If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), 4.01(d) or 4.01(g)
above (if the Event of Default under clause 4.01(d) is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Securities of such series shall have already become due and
payable, the Trustee may, and at the direction of the holders of



27









 







not less than 25% in aggregate principal amount of the Securities of such series then
Outstanding hereunder (each such series voting as a separate class) by notice in writing to the
Issuer (and to the Trustee if given by Holders), shall declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all Outstanding Securities of such
series, together with all accrued and unpaid interest and premium, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due and payable.



     If an Event of Default described in clauses 4.01(e) or 4.01(f) above occurs and is continuing,
then the entire principal amount of the Outstanding Securities will automatically become due
immediately and payable without any declaration or other act on the part of the Trustee or any
Holder.



     Notwithstanding the foregoing, the Holders of a majority in principal amount of the
Outstanding Securities of any series (each such series voting as a separate class) by written
notice to the Issuer and to the Trustee may on behalf of the Holders of all Securities of such
series waive all past defaults and rescind and annul a declaration of acceleration and its
consequences if:




     (i) all existing Events of Default, other than the nonpayment of the principal of and
interest on the Securities that have become due solely by the declaration of acceleration,
have been cured or waived, and




     (ii) the rescission would not conflict with any judgment or decree.



     For all purposes under the Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



     Section 4.02.
 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer
covenants that (a) in case default shall be made in the payment of any installment of interest on
any of the Securities of any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the Securities of such series or upon
any redemption or by declaration or otherwise—then upon demand of the Trustee, the Issuer will pay
to the



28









 







Trustee for the benefit of the Holders of the Securities of such series the whole amount that
then shall have become due and payable on all Securities of such series for principal or interest,
as the case may be (with interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith. The obligation of the
Company and the Co-Issuer under this paragraph are joint and several. In no event shall this
paragraph be deemed to require either Issuer to pay the money payable pursuant to this paragraph to
the extent the other Issuer shall have fulfilled the Issuer’s obligations under this paragraph.



     Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the registered holders, whether or not the principal of and
interest on the Securities of such series be overdue.



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



     In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under Bankruptcy Law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or
to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:




     (a) to file and prove a claim or claims for the whole amount of principal and interest
(or, if the Securities of any series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) owing and unpaid
in respect of the Securities of any



29









 







series, and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for reasonable compensation to
the Trustee and each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad
faith) and of the Holders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property of the
Issuer or such other obligor,




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




     (c) to collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims of the
Holders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Holders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 5.07.



     The Trustee shall be entitled and empowered to take the actions in (a), (b) and (c) above in
the event of proceedings relative to either the Company or the Co-Issuer until after the
consummation of a Discharge Event, from which time the Trustee shall be entitled and empowered to
take such actions only with respect to proceedings of the Remaining Obligor.



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



     All rights of action and of asserting claims under the Indenture, or under any of the
Securities, may be enforced by the Trustee without the possession of any of the



30









 







Securities or the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the payment of the reasonable
expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities
in respect of which such action was taken.



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



     Section 4.03.
 Application of Proceeds. Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities in respect of which moneys have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced
principal amounts in exchange for the presented Securities of like series if only partially paid,
or upon surrender thereof if fully paid:




     FIRST: To the payment of costs and expenses applicable to such series in respect of
which moneys have been collected, including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and of all expenses and
liabilities incurred by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 5.07;




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




     THIRD: In case the principal of the Securities of such series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such series
for principal and interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee)



31









 







upon overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series, then to the payment of
such principal and interest or yield to maturity, without preference or priority of
principal over interest or yield to maturity, or of interest or yield to maturity over
principal, or of any installment of interest over any other installment of interest, or of
any Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or yield to maturity; and




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



     Section 4.04.
 Suits for Enforcement. In case an Event of Default has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by the Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power granted in the Indenture or to
enforce any other legal or equitable right vested in the Trustee by the Indenture or by law.



     Section 4.05.
 Restoration of Rights on Abandonment of Proceedings. In case the Trustee
shall have proceeded to enforce any right under the Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Holders shall continue as though no such proceedings had been taken.



     Section 4.06.
 Limitations on Suits by Holder. No Holder of any Security of any series shall
have any right by virtue or by availing of any provision of the Indenture to institute any action
or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to
the Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of default and of the continuance thereof, as hereinbefore
provided; (ii) the Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder; (iii) such Holder or Holders shall have
offered to the Trustee such indemnity as it may reasonably require against the costs, expenses and
liabilities to be incurred in compliance with such request; (iv) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to institute any such



32









 







action or proceeding; and (v) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a majority in aggregate
principal amount of the Securities of such Series then Outstanding. It is understood and intended,
and expressly covenanted by the taker and Holder of every Security with every other taker and
Holder and the Trustee, that no one or more Holders of any series shall have any right in any
manner whatever by virtue or by availing of any provision of the Indenture to affect, disturb or
prejudice the rights of any other such Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under the Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all Holders of the
applicable series. For the protection and enforcement of the provisions of this Section, each and
every Holder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.



     Section 4.07.
 Unconditional Right of Holders to Institute Certain Suits. Notwithstanding
any other provision in the Indenture and any provision of any Security, the right of any Holder of
any Security to receive payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.



     Section 4.08.
 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.



     No delay or omission of the Trustee or of any Holder to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 4.06, every power and remedy given by the Indenture or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.



     Section 4.09.
 Control by Holders. The Holders of a majority in aggregate principal amount
of the Securities of each series affected (voting as one class) at the time Outstanding shall have
the right to direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to
the Securities of such series by the Indenture; provided, however, that such
direction shall not be otherwise than in accordance with law and the provisions of the Indenture.
Subject to the provisions of Section 5.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised



33









 







by counsel, shall determine that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith shall determine that the action or proceedings so directed
would involve the Trustee in personal liability or if the Trustee in good faith shall determine
that the actions or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so affected not joining in
the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.



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



     Section 4.10.
 Waiver of Past Defaults. Except as otherwise provided in Sections 4.01, 4.07
and 7.02 the Holders of a majority in principal amount of the Outstanding Securities of any series
(voting as one class) may, by notice to the Trustee, on behalf of the Holders of all Securities of
such series waive an existing Default and its consequences. Upon such waiver, the Default will
cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but
no such waiver will extend to any subsequent or other Default or impair any right consequent
thereon.



     Section 4.11.
 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances.
The Trustee shall give to the Holders of any series, as the names and addresses of such Holders
appear on the registry books, notice by mail of all defaults known to the Trustee which have
occurred with respect to such series, such notice to be transmitted within 45 days after the
occurrence thereof, unless such defaults shall have been cured before the giving of such notice
(the term “default” or “defaults” for the purposes of this section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or responsible officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders of such series.



     Section 4.12.
 Right of Court to Require Filing of Undertaking to Pay Costs. In any suit for
the enforcement of any right or remedy under the Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may
assess reasonable costs, including reasonable attorneys fees, against any party litigant (other
than the Trustee) in the suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant.



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This Section does not apply to a suit by a Holder to enforce payment of principal of or
interest on any Security on the respective due dates, or a suit by Holders of more than 10% in
principal amount of the Outstanding Securities.




ARTICLE 5

Concerning the Trustee




     Section 5.01.
 Duties and Responsibilities of the Trustee; During Default; Prior to Default.
(a) The duties and responsibilities of the Trustee are as provided by the Trust Indenture Act and
as set forth herein. Whether or not expressly so provided, every provision of the Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee is
subject to this Article.



     (b) Except during the continuance of an Event of Default, the Trustee need perform only those
duties that are specifically set forth in the Indenture and no others, and no implied covenants or
obligations will be read into the Indenture against the Trustee. In case an Event of Default of
which a Responsible Officer shall have actual knowledge or shall have received written notice from
the Issuer or any holder of Securities of any series has occurred and is continuing, the Trustee
shall exercise those rights and powers vested in it by the Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.



     (c) No provision of the Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct.



     Section 5.02.
 Trustee’s Obligations with Respect to the Covenants. The Trustee shall not be
obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with
the covenants contained in Article 4 or with respect to any reports or other documents filed under
the Indenture; provided, however, that nothing herein shall relieve the Trustee of
any obligations to monitor the Issuer’s timely delivery of all reports and certificates required
under Sections 3.04 and 3.05 of the Indenture and to fulfill its obligations under Article 5
hereof.



     Section 5.03.
 Moneys Held by Trustee. Subject to the provisions of Section 9.06 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except
to the extent required by law. Neither the Trustee nor any agent of the Issuer or the Trustee
shall be liable for interest on any money received by it hereunder except such as it may agree with
the Issuer in writing to pay thereon.



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     Section 5.04.
 Reports by the Trustee to Holders. Within 60 days after each May 15,
beginning with May 15, 2006, the Trustee will mail to each Holder, as provided in Trust Indenture
Act Section 313(c), a brief report dated as of such May 15, if required by Trust Indenture Act
Section 313(a), and file such reports with each stock exchange upon which its Securities are listed
and with the Commission as required by Trust Indenture Act Section 313(d).



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



     A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with the Issuer, with each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission.



     Section 5.05.
 Certain Rights of the Trustee. Subject to Trust Indenture Act Sections 315(a)
through (d):



     (a) In the absence of bad faith on its part, the Trustee may rely, and will be protected in
acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or matter stated in the
document, but, in the case of any document which is specifically required to be furnished to the
Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine
whether it conforms to the requirements of the Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein). The Trustee, in its
discretion, may make further inquiry or investigation into such facts or matters as it sees fit.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel conforming to Section 10.05 and the Trustee will not be liable for any
action it takes or omits to take in good faith in reliance on the certificate or opinion.



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



     (d) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by the Indenture or to institute, conduct or defend any litigation hereunder or in relation
hereto at the request or direction of any of the Holders, unless such Holders have offered to the
Trustee security or indemnity as it may reasonably require against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or direction.



36









 





     (e) The Trustee will not be liable in its individual capacity for any action it takes, suffers
or omits to take in good faith that it believes to be authorized or within its rights or powers or
for any action it takes or omits to take in accordance with the direction of the Holders in
accordance with Section 4.09 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 the Indenture.



     (f) The Trustee may consult with counsel, and any advice of such counsel or any Opinion of
Counsel will be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



     (g) No provision of the Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties hereunder, or in the
exercise of its rights or powers, unless it receives indemnity satisfactory to it against any loss,
liability or expense.



     (h) The Trustee shall not be liable in its individual capacity for an error in judgment made
in good faith by a Responsible Officer or other officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.



     (i) The Trustee shall not be personally liable for any action taken, suffered or omitted by it
in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by the Indenture.



     (j) The Trustee shall have no duty to see to any recording, filing or depositing of the
Indenture or any agreement referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such re-recording or re-filing
or re-depositing thereof.



     (k) The Trustee shall not be required to take notice or be deemed to have notice or knowledge
of any default or Event of Default unless a Responsible Officer of the Trustee shall have received
written notice from the Issuer or any holder of the Securities or obtained actual knowledge
thereof. In the absence of receipt of such notice or actual knowledge, the Trustee may
conclusively assume that there is no default or Event of Default.



     Section 5.06.
 Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any
agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or such agent.



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     Section 5.07.
 Compensation and Indemnification of Trustee and Its Prior Claim. (a) The
Issuer will pay the Trustee compensation as agreed upon in writing for its services. The
compensation of the Trustee is not limited by any law on compensation of a Trustee of an express
trust. The Issuer will reimburse the Trustee upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee, (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except to the extent any such expense, disbursement or advance may
arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee, its
directors, officers, employees and agents and each predecessor Trustee, its directors, officers,
employees and agents for, and to hold each of them harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of the Indenture or the
trusts hereunder and the performance of its duties hereunder and under the Securities, including
the costs and expenses of defending itself against or investigating any claim of liability in the
premises and the costs and expenses of defending itself against any claim or liability and of
complying with any process served upon it or any of its officers, except to the extent such loss
liability or expense is due to the negligence or bad faith of the Trustee or such predecessor
Trustee.



     Anything in the Indenture to the contrary notwithstanding, in no event shall the Trustee be
liable for special, indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits) unless it shall be proved that the Trustee acted in bad faith or was
grossly negligent in acting or failing to act.



     (b) To secure the Issuer’s payment obligations in this Section, the Trustee will have a lien
prior to the Securities on all money or property held or collected by the Trustee, in its capacity
as Trustee, except money or property held in trust to pay principal of, and interest on particular
Securities.



     The obligations of the Issuer under this Section 5.07 shall survive the resignation and
removal of the Trustee and payment of the Securities, and shall extend to any co-trustee or
separate trustee.



     Section 5.08.
 Right of Trustee to Rely on Officers’ Certificate, etc. Subject to Sections
5.01 and 5.05, whenever in the administration of the trusts of the Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee,
be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of the Indenture upon the faith thereof.



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     Section 5.09.  Disqualification; Conflicting Interests. If the Trustee has or shall acquire
any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Issuer shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.



     Section 5.10.
 Persons Eligible for Appointment as Trustee. The Indenture must always have a
Trustee that satisfies the requirements of Trust Indenture Act Section 310(a) and has a combined
capital and surplus of at least $25,000,000 as set forth in its most recent published annual report
of condition.



     Section 5.11.
 Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee,
or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more
or all series of Securities by giving written notice of resignation to the Issuer and by mailing
notice thereof by first class mail to Holders of the applicable series of Securities at their last
addresses as they shall appear on the Register. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series
by written instrument in duplicate, executed by authority of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee
or trustees. If no successor trustee shall have been so appointed with respect to any series and
have accepted appointment within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide Holder of a Security or Securities of the
applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf
of himself and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.



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




     (i) the Trustee shall fail to comply with the provisions of Section 310(b) of the
Trust Indenture Act with respect to any series of Securities after written request therefor
by the Issuer or by any Holder who has been a bona fide Holder of a Security or Securities
of such series for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 310(a) of the Trust Indenture Act and shall fail to resign after written request
therefor by the Issuer or by any Holder; or




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



39









 




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




     (c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time Outstanding may at any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the Securities of such series with the
consent of the Issuer by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 6.01 of the action in that regard
taken by the Holders.



     (d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 5.11 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 5.12.



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



     Section 5.12.
 Acceptance of Appointment by Successor. Any successor trustee appointed as
provided in Section 5.11 shall execute and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such series of its predecessor hereunder,
with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 9.06, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations.



     If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
prepared by and at the expense of the Issuer which (1) shall contain



40









 







such provisions as shall be deemed necessary or desirable to transfer and confirm to, and to
vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not retiring shall continue to
be vested in the predecessor Trustee, and (3) shall add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that each such trustee
shall be trustee of a trust or trusts under separate indentures.



     Upon acceptance of appointment by any successor trustee as provided in this Section 5.12, the
Issuer shall mail notice thereof by first-class mail to the Holders of any series for which such
successor trustee is acting as trustee at their last addresses as they shall appear in the
Register. If the acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the notice called for by
Section 5.11. If the Issuer fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.



     Section 5.13.
 Merger, Conversion, Consolidation or Succession to Business of Trustee. If
the Trustee consolidates with, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation or national banking association, the
resulting, surviving or transferee corporation or national banking association without any further
act will be the successor Trustee with the same effect as if the successor Trustee had been named
as the Trustee in the Indenture.



     In case at the time such successor to the Trustee shall succeed to the trusts created by the
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in the Indenture provided that the certificate of the
Trustee shall have; provided, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or consolidation.



41









 





     Section 5.14.
 Preferential Collection of Claims Against the Issuer. The Trustees shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.



     Section 5.15.
 Indentures Not Creating Potential Conflicting Interests for the Trustee. The
following indenture is hereby specifically described for the purposes of Section 310(b)(1) of the
Trust Indenture Act: Indenture between Oracle Corporation and State Street Bank and Trust Company
of California, dated as of February 24, 1997.



     Section 5.16.
 Trustee’s Disclaimer. The Trustee (i) makes no representation as to the
validity or adequacy of the Indenture or the Securities, (ii) is not accountable for the Issuer’s
use or application of the proceeds from the Securities and (iii) is not responsible for any
statement in the Securities other than its certificate of authentication.



ARTICLE 6

Concerning the Holders




     Section 6.01.
 Evidence of Action Taken by Holders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Indenture to be given or taken
by a specified percentage in principal amount of the Holders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such specified
percentage of 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.



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



42









 





     Proof of execution of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of the Indenture and (subject to Sections 5.01 and 5.05) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this Article.



     Section 6.02.
 Proof of Execution of Instruments and of Holding of Securities; Record Date.
Subject to Sections 5.01 and 5.05, the execution of any instrument by a Holder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Register or by a certificate of the registrar thereof. The
Issuer may set a record date for purposes of determining the identity of Holders of any series
entitled to vote or consent to any action referred to in Section 6.01, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates (in the case of
any adjournment or reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof,
only Holders of such series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent. Notice of such record date may be given before or after
any request for any action referred to in Section 6.01 is made by the Issuer.



     Section 6.03.
 Holders to Be Treated as Owners. Prior to the due presentment for
registration of transfer of any Security, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may deem and treat the person in whose name any Security shall be registered upon the
Register for such series as the absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose
of receiving payment of or on account of the principal of, and, subject to the provisions of the
Indenture, interest on such Security and for all other purposes; and neither the Issuer, the
Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.



     Section 6.04.
 Securities Owned by Issuer Deemed Not Outstanding. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series
have concurred in any direction, consent or waiver under the Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such determination is
being made or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction,



43









 







consent or waiver only Securities which a Responsible Officer of the Trustee actually knows
are so owned, or has received written notice that such Securities are so owned, shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Issuer or any other obligor
upon the Securities or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 5.01 and 5.05, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.



     Section 6.05.
 Right of Revocation of Action Taken. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities of any or all series, as the case
may be, specified in the Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such action may, by filing written notice at the
applicable Corporate Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and of any Securities issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in the Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.



ARTICLE 7

Amendments, Supplements and Waivers




     Section 7.01.
 Supplemental Indentures without Consent of Holders. The Issuer and the
Trustee may amend the Indenture or the Securities or enter into an indenture supplemental hereto
without notice to or the consent of any Holder to



     (a) cure ambiguities, defects or inconsistencies;



44









 





     (b) to comply with Article 8 in the case of a merger or consolidation;



     (c) make any change that would provide any additional rights or benefits to the Holders of the
Securities of a series;



     (d) provide for or add guarantors with respect to the Securities of any series;



     (e) secure the Securities of a series;



     (f) establish the form or forms of Securities of any series;



     (g) maintain the qualification of the Indenture under the Trust Indenture Act;



     (h) conform any provision in the Indenture to the prospectus, offering memorandum, offering
circular or any other document pursuant to which the Securities of such series were offered;



     (i) make any change that does not adversely affect the rights of any Holder; or



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



     Any amendment or supplemental indenture authorized by the provisions of this section may be
executed without notice to and without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 7.02.



     Section 7.02.
 Supplemental Indentures with Consent of Holders. (a) With the consent
(evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series affected by such amendment
or supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such series and such
Holders may waive future compliance by the Issuer with a provision of the Indenture or the
Securities.



     (b) Notwithstanding the provisions of paragraph (a), without the consent of each affected
Holder of a particular series, an amendment, supplement or waiver may not



45









 






     (i) reduce the principal amount, or extend the fixed maturity, of the Securities,
alter or waive the redemption provisions of the Securities;




     (ii) change the currency in which principal, any premium or interest is paid;




     (iii) reduce the percentage in principal amount Outstanding of Securities of any
series which must consent to an amendment, supplement or waiver or consent to take any
action;




     (iv) impair the right to institute suit for the enforcement of any payment on the
Securities;




     (v) waive a payment default with respect to the Securities or any guarantor;




     (vi) reduce the interest rate or extend the time for payment of interest on the
Securities; or




     (vii) adversely affect the ranking of the Securities of any series.



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



     Section 7.03.
 Execution of Amendments or Supplemental Indentures or Waivers. Upon the
request of the Issuer, accompanied by a copy of a Resolution of the Board of Directors certified by
the secretary or an assistant secretary of the Issuer authorizing the execution of any such
amendment, supplemental indenture or waiver and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid and other documents, if any, required by Section 6.01, the Trustee
shall join with the Issuer in the execution of such amendment, supplemental indenture or waiver
unless such supplemental indenture or waiver affects the Trustee’s own rights, duties or immunities
under the Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amendment, supplemental indenture or waiver.



     The Trustee, subject to the provisions of Sections 5.01 and 5.05, may receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any amendment, supplemental
indenture or waiver executed pursuant to this Article 7 complies with the applicable provisions of
the Indenture; provided, however, that such Officers’ Certificate and Opinion of
Counsel need not be provided in connection with the execution of an amendment, supplemental
indenture or waiver that establishes the terms of a series of Securities pursuant to Section 2.01
hereof.



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     Promptly after the execution by the Issuer and the Trustee of any amendment, supplemental
indenture or waiver pursuant to the provisions of this Section, the Issuer shall mail a notice
thereof by first class mail to the Holders of each series affected thereby at their addresses as
they shall appear on the registry books of the Issuer, setting forth in general terms the substance
of such amendment, supplemental indenture or waiver. Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such amendment, supplemental indenture or waiver.



     Section 7.04. Effect of Amendment, Supplemental Indenture or Waiver. Upon the execution of
any amendment, supplemental indenture or waiver pursuant to the provisions hereof, the Indenture
shall be and be deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under the Indenture of the
Trustee, the Issuer and the Holders of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such amendment, supplemental indenture or waiver shall be and
be deemed to be part of the terms and conditions of the Indenture for any and all purposes.



     Section 7.05. Effect of Consent. After an amendment, supplement or waiver becomes
effective, it will bind every Holder unless it is of the type requiring the consent of each Holder
affected. If the amendment, supplement or waiver is of the type requiring the consent of each
Holder affected, the amendment, supplement or waiver will bind each Holder that has consented to it
and every subsequent Holder of a Security that evidences the same debt as the Security of the
consenting Holder.



     Section 7.06. Notation on Securities in Respect of Amendments, Supplemental Indentures or
Waivers. Securities of any series authenticated and delivered after the execution of any
amendment, supplemental indenture or waiver pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series, as to any matter provided for by such
amendment, supplemental indenture or waiver or as to any action taken at any such meeting. If the
Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Board of Directors of the Issuer, to any modification of the Indenture
contained in any such amendment, supplemental indenture or waiver may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of such series then
Outstanding.



     Section 7.07. Conformity with the Trust Indenture Act. Every amendment, supplemental
indenture or waiver executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.



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ARTICLE 8

Consolidation, Merger, Sale or Conveyance




     Section 8.01. Consolidation, Merger or Sale of Assets by the Issuer. (a) The Issuer shall
not merge or consolidate or combine with or into or, directly or indirectly, sell, assign, convey,
lease, transfer or otherwise dispose of all or substantially all of its assets to any Person or
persons in a single transaction or through a series of transactions, unless:




     (i) the Issuer shall be the continuing person or, if the Issuer is not the continuing
person, the resulting, surviving or transferee person (the “Surviving Entity”) is a company
organized and existing under the laws of the United States or any State or territory;




     (ii) the Surviving Entity shall expressly assume all of the Issuer’s obligations under
the Securities and the Indenture, and shall, if required by law to effectuate the
assumption, execute a supplemental indenture which will be delivered to the Trustee;




     (iii) immediately after giving effect to such transaction or series of transactions on
a pro forma basis, no Event of Default has occurred and is continuing; and




     (iv) the Issuer or the Surviving Entity will have delivered to the Trustee an
Officers’ Certificate and Opinion of Counsel stating that the transaction or series of
transactions and a supplemental indenture, if any, complies with this Section 8.01 and that
all conditions precedent in the Indenture relating to the transaction or series of
transactions have been satisfied.



     (b) The restrictions in paragraph Sections 8.01(a)(iii) and 8.01(a)(iv) shall not be
applicable to:




     (i) the merger or consolidation of the Issuer with an affiliate of the Issuer if the
Board of Directors determines in good faith that the purpose of such transaction is
principally to change the state of incorporation of the Issuer or convert the form of
organization of the Issuer to another form; or




     (ii) the merger of the Issuer with or into a single direct or indirect wholly owned
subsidiary of the Issuer pursuant to Section 251(g) of the General Corporation Law of the
State of Delaware.



     Section 8.02. Successor Corporation Substituted. If any consolidation or merger or any
sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of
the Issuer’s assets occurs in accordance with the Indenture, the successor corporation shall
succeed to, and be substituted for, and may exercise every



48









 







right and power of the Issuer under the Indenture with the same effect as if such successor
corporation had been named herein as the Issuer and the Issuer shall (except in the case of a
lease) be discharged from all obligations and covenants under the Indenture and the Securities.



     Section 8.03. Discharge Event. It is understood that, as of the date of the Indenture, (1)
the Co-Issuer is a wholly owned subsidiary of the Company, (2) Ozark Merger Sub Inc. (“Merger Sub”)
is a wholly owned subsidiary of the Co-Issuer, and (3) the Company intends to cause Merger Sub to
be merged with and into the Company (the “Reorganization”) pursuant to Section 251(g) of the
General Corporation Law of the State of Delaware, with the Company surviving as a wholly owned
subsidiary of the Co-Issuer.



     Upon the consummation of the Reorganization, the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities and the Co-Issuer, without further
action on the part of the Co-Issuer, the Company, the Trustee or any Holder, shall remain the sole
obligor under the Securities and the Indenture and may exercise every right and power thereunder
and hereunder.



     If for any reason an authorized officer of the Company determines not to complete the
Reorganization, which determination shall be evidenced by a writing addressed to the Trustee, the
Co-Issuer will be discharged from all obligations and covenants under the Indenture and the
Securities and the Company, without further action on the part of the Co-Issuer, the Company, the
Trustee or any Holder, will remain the sole obligor under the Securities and the Indenture and may
exercise every right and power thereunder.



     Section 8.04. Opinion of Counsel to Trustee. The Trustee, subject to the provisions of
Sections 5.01 and 5.05, may receive an Opinion of Counsel, prepared in accordance with Section
10.05, as conclusive evidence that any such consolidation, combination, merger, sale, conveyance,
lease, transfer or other disposition, and any such succession, substitution and assumption complies
with the applicable provisions of the Indenture.



ARTICLE 9

Defeasance and Discharge; Unclaimed Moneys




     Section 9.01. Satisfaction and Discharge of Indenture. The Issuer may terminate its
obligations under the Indenture, when:



     (a) either (i) all the Securities of any series issued that have been authenticated and
delivered have been accepted by the Trustee for cancellation (other than any Securities of such
series which shall have been destroyed, lost or stolen and which shall



49









 







have been replaced or paid as provided in Section 2.09); or (ii) all the Securities of any
series issued that have not been accepted by the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year, and the Issuer shall have
made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by
such Trustee in the Issuer’s name, and at the Issuer’s expense and the Issuer have irrevocably
deposited or caused to be deposited with the Trustee sufficient funds to pay and discharge the
entire indebtedness on the series of Securities to pay principal, interest and any premium; and



     (b) The Issuer shall have paid or caused to be paid all other sums then due and payable under
the Indenture; and



     (c) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that all conditions precedent under the Indenture relating to the satisfaction
and discharge of the indenture have been complied with.



     If the foregoing conditions are met, the Trustee, on demand of the Issuer accompanied by an
Officers’ Certificate and an Opinion of counsel and at the cost and expense of the Issuer, shall
execute proper instruments prepared by the Issuer acknowledging such satisfaction of and
discharging the Indenture with respect to such series except as to:



          (1) rights of registration of transfer and exchange of Securities of such series, and the
Issuer’s right of optional redemption, if any;



          (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities;



          (3) rights of Holders to receive payments when due of principal thereof and interest thereon,
and remaining rights of the holders to receive mandatory sinking fund payments, if any;



          (4) the rights, powers, trusts, duties and immunities of the Trustee hereunder,



          (5) the rights of the Holders of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them; and



          (6) the rights of the Issuer to be repaid any money pursuant to Sections 9.05 and 9.06).



     Section 9.02.
 Legal Defeasance. After the 91st day following the deposit referred to in
Section 9.01, the Issuer will be deemed to have paid and will be discharged from its obligations in
respect of the Securities of any series and the Indenture, other than its obligations in Article 2
and Sections 3.01, 3.02, 5.07, 5.11, and listed in clauses (1),



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(2), (3), (4), (5), and (6) of Section 9.01, provided the following conditions have
been satisfied:




     (a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust
funds for the purpose of making the following payments, specifically pledged as security for, and
dedicated solely to the benefits of the holders of the Securities of a series in cash or
Governmental Obligations or a combination thereof (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 9.06) in each case sufficient without
reinvestment, in the written opinion of a internationally recognized firm of independent public
accountants to pay and discharge, and which shall be applied by the Trustee to pay and discharge,
all of the principal, interest and any premium at due date or maturity or if the Issuer has made
irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the
trustee in the Issuer’s name and at the Issuer’s expense, the redemption date;



     (b) The Issuer has delivered to the Trustee an Opinion of Counsel stating that, as a result of
an IRS ruling or a change in applicable federal income tax law, the holders of the Securities of
that series will not recognize gain or loss for federal income tax purposes as a result of the
deposit, defeasance and discharge to be effected and will be subject to the same federal income tax
as would be the case if the deposit, defeasance and discharge did not occur;



     (c) No default with respect to the outstanding Securities of that series has occurred and is
continuing at the time of such deposit after giving effect to the deposit or, in the case of legal
defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any
time on or before the 91st day after the date of such deposit, it being understood that this
condition is not deemed satisfied until after the 91st day;



     (d) The defeasance will not cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act, assuming all Securities of a series were in default within the
meaning of such Act;



     (e) The deposit will not result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Issuer is a party or by which it is bound;



     (f) The defeasance will not result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act of 1940, as amended, unless the
trust is registered under such Act or exempt from registration; and



51









 





     (g) The Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the
defeasance have been complied with;



     Prior to the end of the 91-day period, none of the Issuer’s obligations under the Indenture
will be discharged. Thereafter, the Trustee upon request will acknowledge in writing the discharge
of the Issuer’s obligations under the Securities and the Indenture except for the surviving
obligations specified above.



     Section 9.03.
 Covenant Defeasance. After the 91st day following the deposit referred to in
Section 9.01, the Issuer’s obligations set forth in Sections 3.04, 3.05 and 8.01 will terminate and
Section 4.01(d) will no longer constitute an Event of Default, provided the following
conditions have been satisfied:



     (a) The Issuer has complied with clauses (a), (c), (d), (e), (f) and (g) of Section 9.02; and




     (b) the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of that series will not recognize gain or loss for U.S. federal income
tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject
to the same federal income tax as would be the case if the deposit and covenant defeasance did not
occur.



     Except as specifically stated above, none of the Issuer’s obligations under the Indenture will
be discharged.



     Section 9.04. Application by Trustee of Funds Deposited for Payment of Securities. Subject
to Section 9.06, all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in
trust and applied by it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular Securities of such series
for the payment or redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee, of all sums due and to become due thereon for principal and interest. Such money
need not be segregated from other funds except to the extent required by law.



     Section 9.05.
 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction
and discharge of the Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of the Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to the Issuer or paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such moneys or
Governmental Obligations.



     Section 9.06.
 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.
Any moneys or Governmental Obligations deposited with or paid to the



52









 







Trustee or any paying agent for the payment of the principal of or interest on any Security of
any series and not applied but remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to
the Issuer for any payment which such Holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such moneys shall thereupon cease



ARTICLE 10

Miscellaneous Provisions




     Section 10.01. Incorporators, Stockholders, Employees, Officers and Directors of Issuer
Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in the Indenture, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against any past, present or future stockholder,
employee, officer or director, as such, of the Issuer or of any successor, either directly or
through the Issuer or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the holders
thereof and as part of the consideration for the issue of the Securities.



     Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Holders. Nothing
in the Indenture or in the Securities, expressed or implied, shall give or be construed to give to
any person, firm or corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under the Indenture or under any
covenant or provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the Securities.



     Section 10.03. Successors and Assigns of Issuer Bound by Indenture. All the agreements of
the Issuer in the Indenture and the Securities shall bind its successors and assigns.



     Section 10.04. Notices and Demands on Issuer, Trustee and Holders. Any notice or demand
which by any provision of the Indenture is required or permitted to be given or served by the
Trustee or by the Holders to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to Oracle Corporation, 500
Oracle Parkway, Redwood City, California



53









 




94065 Attention: Chief Financial Officer and a copy of such notice or demand shall be sent to
the Company’s General Counsel at the same address and to Ozark Holding Inc, 500 Oracle Parkway,
Redwood City, California 94065 Attention: Chief Financial Officer and a copy of such notice or
demand shall be sent to the Co-Issuer’s General Counsel at the same address. Any notice,
direction, request or demand by the Issuer or any Holder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at the applicable
Corporate Trust Office of the Trustee.




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



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



     Section 10.05. Officers’ Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any
of the provisions of the Indenture, the Issuer shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in the Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of such documents is specifically
required by any provision of the Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.



     Each certificate or opinion provided for in the Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in the Indenture shall include (a)
a statement that the person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an



54









 







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



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



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



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



     Section 10.06. Payments Due on Saturdays, Sundays and Holidays. Except as provided pursuant
to Section 2.01 pursuant to a Resolution of the Board of Directors, and as set forth in an
Officers’ Certificate, or established in one or more indentures supplemental to the Indenture, if
the date of maturity of interest on or principal of the Securities of any series or the date fixed
for redemption or repayment of any such Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.



     Section 10.07. Trust Indenture Act of 1939. The Indenture shall incorporate and be governed
by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.



     Section 10.08. New York Law to Govern. The Indenture and each Security shall be governed by
and construed in accordance with the laws of the State of New York.



55









 





     Section 10.09 . Counterparts. The Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the
same instrument.



     Section 10.10. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.



     Section 10.11. Separability. In case any one or more of the provisions contained in the
Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect
or impair any other provisions of the Indenture or of such Securities, but the Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.



ARTICLE 11

Redemption of Securities and Sinking Fund Provisions




     Section 11.01. Applicability of Article. The provisions of this Article shall be applicable
to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.



     Section 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of any series to be redeemed as a whole or in part at the option of the Issuer shall be
given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders of such series at
their last addresses as they shall appear upon the registry books. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of such series.



     The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking
fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the portion of the principal amount
thereof to be



56









 







redeemed and shall state that on and after the date fixed for redemption, upon surrender of
such Security, a new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.



     The notice of redemption of Securities of any series to be redeemed shall be prepared and
given by the Issuer or, at the Issuer’s request, prepared by the Issuer and given by the Trustee in
the name and at the expense of the Issuer.



     If less than all the Securities of a series are to be redeemed, the Securities to be redeemed
shall be selected by lot by the Depositary in the case of Securities represented by a Global
Security, or, in the case of Securities not represented by a Global Security, the Trustee shall
select, in such manner as it shall deem appropriate and fair, Securities of such series to be
redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of the Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities of any series shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.



     At least one Business Day prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or with one or more
paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold
in trust as provided in Section 3.03) an amount of money sufficient to redeem on the redemption
date all the Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption.



     Section 11.03. Payment of Securities Called for Redemption. If notice of redemption has
been given as above provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and such Securities shall cease from and
after the date fixed for redemption to be entitled to any benefit or security under the Indenture,
and the Holders thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued thereon to the



57









 







date fixed for redemption; provided that any payment of interest becoming due on or before the
date fixed for redemption shall be payable to the Holders of such Securities registered as such on
the relevant record date.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by the Security.



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



     Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed by an authorized
officer of the Issuer and delivered to the Trustee at least 15 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.



     Section 11.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms
of Securities of any series is herein referred to as an “optional sinking fund payment”. The date
on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment
date”.



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



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     Not less than 60 days prior to each sinking fund payment date for any series, the Issuer will
deliver to the Trustee a written statement (which need not contain the statements required by
Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied
by credit of Securities of such series, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or reasonably promptly
thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, at least 60 days prior to such sinking fund payment date, to
deliver such written statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.



     The Trustee shall select, in the manner provided in Section 11.02, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such series to absorb said
cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so selected. Securities
of any series which are (a) owned by the Issuer or an entity known by the Trustee to be directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer,
as shown by the Register, and not known to the Trustee to have been pledged or hypothecated by the
Issuer or any such entity or (b) identified in an Officers’ Certificate at least 60 days prior to
the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by,
the Issuer or an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of such series eligible
for selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if they shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in Section 11.02 (and
with the effect provided in Section 11.03) for the redemption of Securities of such series in part
at the option of the Issuer. The amount of



59









 







any sinking fund payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series, shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.



     At least one Business Day before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been collected under Article
4 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 4.09 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this section to the redemption of such
Securities.



60









 





     IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be duly executed as of the
date set forth above.



	 	 	 	 	 	 	 
	 	 	ORACLE CORPORATION  
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Eric R. Ball	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Eric R. Ball	 	 
	 

	 	 	 	Title:   Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	OZARK HOLDING INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Eric R. Ball	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Eric R. Ball	 	 
	 

	 	 	 	Title:   Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CITIBANK, N.A.
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Louis Piscitelli	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Louis Piscitelli	 	 
	 

	 	 	 	Title:   Vice
President	 	 






61









 






	 	 	 
	STATE OF CALIFORNIA

	 	)
	 

	 	)  ss.:
	COUNTY OF SAN MATEO

	 	)






     On this ___day of January before me personally came ___to me personally known,
who, being by me duly sworn, did depose and say that he resides at ___that he is a
___of Oracle Corporation, one of the corporations described in and which executed the
above instrument and that he signed his name thereto by like authority.



[NOTARIAL SEAL]




	 	 	 
	 

	 	 
	 

	 	Notary Public






62









 






	 	 	 
	STATE OF CALIFORNIA

	 	)
	 

	 	)  ss.:
	COUNTY OF SAN MATEO

	 	)






     On this ___day of January before me personally came ___to me personally known,
who, being by me duly sworn, did depose and say that he resides at ___that he is a
___of Ozark Holding Inc., one of the corporations described in and which executed the
above instrument and that he signed his name thereto by like authority.



[NOTARIAL SEAL]




	 	 	 
	 

	 	 
	 

	 	Notary Public






63









 






	 	 	 
	STATE OF NEW YORK

	 	)
	 

	 	)  ss.:
	COUNTY OF NEW YORK

	 	)






     On this ___day of January before me personally came ___to me personally known, who,
being by me duly sworn, did depose and say that he resides at ___that he is a
___of CITIBANK, N.A, one of the corporations described in and which executed the
above instrument; and that he signed his name thereto by like authority.



[NOTARIAL SEAL]




	 	 	 
	 

	 	 
	 

	 	Notary Public







64