Exhibit 4.7


 


 


Thompson Creek Metals Company Inc.,

as Issuer,


 


and


 






 


INDENTURE


 


Dated as of      ,    


 






 


Wells Fargo Bank, National Association,

as Trustee


 

















 


CROSS-REFERENCE TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.08;
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.02;
  4.03; 11.02

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  11.05

  
	
  (f)

  	
   

  	
  4.04

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05;
  11.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(last
  sentence)

  	
   

  	
  11.06

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.05

  
	
  318(a)

  	
   

  	
  11.01

  



 


N.A.  means Not Applicable.


 






Note:      This Cross-Reference Table
shall not, for any purpose, be deemed to be part of this Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
  Other
  Definitions

  	
   

  	
  6

  
	
  SECTION 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  	
  6

  
	
  SECTION 1.04.

  	
  Rules
  of Construction

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  THE
  SECURITIES

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Issuable
  in Series

  	
   

  	
  8

  
	
  SECTION 2.02.

  	
  Establishment
  of Terms of Series of Securities

  	
   

  	
  8

  
	
  SECTION 2.03.

  	
  Execution
  and Authentication

  	
   

  	
  11

  
	
  SECTION 2.04.

  	
  Registrar
  and Paying Agent

  	
   

  	
  12

  
	
  SECTION 2.05.

  	
  Paying
  Agent To Hold Money in Trust

  	
   

  	
  13

  
	
  SECTION 2.06.

  	
  Lists
  of Holders of Securities

  	
   

  	
  14

  
	
  SECTION 2.07.

  	
  Transfer
  and Exchange

  	
   

  	
  14

  
	
  SECTION 2.08.

  	
  Replacement
  Securities

  	
   

  	
  15

  
	
  SECTION 2.09.

  	
  Outstanding
  Securities

  	
   

  	
  15

  
	
  SECTION 2.10.

  	
  Temporary
  Securities

  	
   

  	
  16

  
	
  SECTION 2.11.

  	
  Cancellation

  	
   

  	
  16

  
	
  SECTION 2.12.

  	
  Defaulted
  Interest

  	
   

  	
  16

  
	
  SECTION 2.13.

  	
  Global
  Securities

  	
   

  	
  17

  
	
  SECTION 2.14.

  	
  CUSIP
  Numbers and ISINs

  	
   

  	
  18

  
	
  SECTION 2.15.

  	
  Computation
  of Interest

  	
   

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  REDEMPTION

  	
   

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Notices
  to Trustee

  	
   

  	
  18

  
	
  SECTION 3.02.

  	
  Selection
  of Securities to Be Redeemed

  	
   

  	
  19

  
	
  SECTION 3.03.

  	
  Notice
  of Redemption

  	
   

  	
  19

  
	
  SECTION 3.04.

  	
  Effect
  of Notice of Redemption

  	
   

  	
  20

  
	
  SECTION 3.05.

  	
  Deposit
  of Redemption Price

  	
   

  	
  20

  
	
  SECTION 3.06.

  	
  Securities
  Redeemed in Part

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  COVENANTS

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment
  of Securities

  	
   

  	
  21

  
	
  SECTION 4.02.

  	
  SEC
  Reports

  	
   

  	
  21

  
	
  SECTION 4.03.

  	
  Compliance
  Certificate

  	
   

  	
  21

  
	
  SECTION 4.04.

  	
  Further
  Instruments and Acts

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  SUCCESSOR
  COMPANY

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  When
  Company May Merge or Transfer Assets

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
  DEFAULTS
  AND REMEDIES

  	
   

  	
  23

  
					



 


i

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events
  of Default

  	
   

  	
  23

  
	
  SECTION 6.02.

  	
  Acceleration

  	
   

  	
  25

  
	
  SECTION 6.03.

  	
  Other
  Remedies

  	
   

  	
  25

  
	
  SECTION 6.04.

  	
  Waiver
  of Past Defaults

  	
   

  	
  26

  
	
  SECTION 6.05.

  	
  Control
  by Majority

  	
   

  	
  26

  
	
  SECTION 6.06.

  	
  Limitation
  on Suits

  	
   

  	
  26

  
	
  SECTION 6.07.

  	
  Rights
  of Holders to Receive Payment

  	
   

  	
  27

  
	
  SECTION 6.08.

  	
  Collection
  Suit by Trustee

  	
   

  	
  27

  
	
  SECTION 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
   

  	
  27

  
	
  SECTION 6.10.

  	
  Priorities

  	
   

  	
  28

  
	
  SECTION 6.11.

  	
  Restoration
  of Rights and Remedies

  	
   

  	
  29

  
	
  SECTION 6.12.

  	
  Undertaking
  for Costs

  	
   

  	
  29

  
	
  SECTION 6.13.

  	
  Waiver
  of Stay or Extension Laws

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
  TRUSTEE

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Duties
  of Trustee

  	
   

  	
  29

  
	
  SECTION 7.02.

  	
  Rights
  of Trustee

  	
   

  	
  30

  
	
  SECTION 7.03.

  	
  Individual
  Rights of Trustee

  	
   

  	
  32

  
	
  SECTION 7.04.

  	
  Trustee’s
  Disclaimer

  	
   

  	
  32

  
	
  SECTION 7.05.

  	
  Notice
  of Defaults

  	
   

  	
  33

  
	
  SECTION 7.06.

  	
  Reports
  by Trustee to Holders

  	
   

  	
  33

  
	
  SECTION 7.07.

  	
  Compensation
  and Indemnity

  	
   

  	
  33

  
	
  SECTION 7.08.

  	
  Replacement
  of Trustee

  	
   

  	
  34

  
	
  SECTION 7.09.

  	
  Successor
  Trustee by Merger

  	
   

  	
  35

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification

  	
   

  	
  35

  
	
  SECTION 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
   

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
  DISCHARGE
  OF INDENTURE; DEFEASANCE

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Discharge
  of Liability on Securities; Defeasance

  	
   

  	
  36

  
	
  SECTION 8.02.

  	
  Conditions
  to Defeasance

  	
   

  	
  37

  
	
  SECTION 8.03.

  	
  Application
  of Trust Money

  	
   

  	
  38

  
	
  SECTION 8.04.

  	
  Repayment
  to Company

  	
   

  	
  38

  
	
  SECTION 8.05.

  	
  Indemnity
  for Government Obligations

  	
   

  	
  38

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
   

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  SUPPLEMENTAL INDENTURES

  	
   

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without
  Consent of Holders

  	
   

  	
  39

  
	
  SECTION 9.02.

  	
  With
  Consent of Holders

  	
   

  	
  41

  
	
  SECTION 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
   

  	
  42

  
	
  SECTION 9.04.

  	
  Revocation
  and Effect of Consents and Waivers

  	
   

  	
  42

  
	
  SECTION 9.05.

  	
  Notation
  on or Exchange of Securities

  	
   

  	
  43

  
	
  SECTION 9.06.

  	
  Trustee
  To Sign Supplemental Indentures

  	
   

  	
  43

  
					



 


ii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 9.07.

  	
  Payment
  for Consent

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
  SUBORDINATION
  OF SECURITIES

  	
   

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Applicability
  of Article; Agreement to Subordinate

  	
   

  	
  44

  
	
  SECTION 10.02.

  	
  Rights
  of Holders of Subordinated Indebtedness

  	
   

  	
  44

  
	
  SECTION 10.03.

  	
  Payments
  and Distributions

  	
   

  	
  45

  
	
  SECTION 10.04.

  	
  Payments
  by the Company

  	
   

  	
  47

  
	
  SECTION 10.05.

  	
  Appointment
  of the Trustee by Holders

  	
   

  	
  47

  
	
  SECTION 10.06.

  	
  Notice
  to Trustee

  	
   

  	
  47

  
	
  SECTION 10.07.

  	
  Rights
  of Trustee

  	
   

  	
  48

  
	
  SECTION 10.08.

  	
  Paying
  Agent

  	
   

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
  MISCELLANEOUS

  	
   

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Trust
  Indenture Act Controls

  	
   

  	
  48

  
	
  SECTION 11.02.

  	
  Notices

  	
   

  	
  48

  
	
  SECTION 11.03.

  	
  Communication
  by Holders with Other Holders

  	
   

  	
  49

  
	
  SECTION 11.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  	
  49

  
	
  SECTION 11.05.

  	
  Statements
  Required in Certificate or Opinion

  	
   

  	
  49

  
	
  SECTION 11.06.

  	
  When
  Securities Disregarded

  	
   

  	
  50

  
	
  SECTION 11.07.

  	
  Rules
  by Trustee, Paying Agent and Registrar

  	
   

  	
  50

  
	
  SECTION 11.08.

  	
  Legal
  Holidays

  	
   

  	
  50

  
	
  SECTION 11.09.

  	
  Governing
  Law; Waiver of Jury Trial

  	
   

  	
  50

  
	
  SECTION 11.10.

  	
  No
  Recourse Against Others

  	
   

  	
  50

  
	
  SECTION 11.11.

  	
  Successors

  	
   

  	
  50

  
	
  SECTION 11.12.

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  	
  50

  
	
  SECTION 11.13.

  	
  Separability

  	
   

  	
  51

  
	
  SECTION 11.14.

  	
  Multiple
  Originals

  	
   

  	
  51

  
	
  SECTION 11.15.

  	
  Table
  of Contents; Headings

  	
   

  	
  51

  
	
  SECTION 11.16.

  	
  U.S.A.
  Patriot Act

  	
   

  	
  51

  
					



 


iii

















 


INDENTURE
dated as of [     ], among Thompson Creek Metals
Company Inc., a corporation governed by the Business Corporations Act
(British Columbia) (the “Company”), and Wells Fargo Bank, National Association,
a national banking association, as trustee (the “Trustee”). 


 


RECITALS 


 


The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its senior or subordinated
debentures, notes or other evidences of indebtedness, which may be convertible
into or exchangeable for any securities of any person (including the Company),
to be issued in one or more series (the “Securities”), as herein provided, up
to such principal amount as may from time to time be authorized in or pursuant
to one or more resolutions of the Board of Directors or by supplemental
indenture.  All things necessary to make
this Indenture a valid, legal and binding agreement of the Company, in
accordance with its terms, have been done. 
This Indenture is subject to, and will be governed by, the provisions of
the Trust Indenture Act of 1939, as amended, that are required to be a part of
and govern indentures qualified under the Trust Indenture Act of 1939, as
amended. 


 


THIS INDENTURE WITNESSETH 


 


Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of the Securities: 


 


ARTICLE 1 


 


Definitions and
Incorporation by Reference  


 


SECTION 1.01.  Definitions. 


 


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


 


“Board
of Directors” means the board of directors of the Company or any committee
thereof duly authorized to act on behalf of the board of directors of the
Company. 


 


“Business
Day” means each day which is not a Legal Holiday. 


 


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


 

















 


“Closing
Date” means [    ]. 


 


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


 


“Company”
means the party named as such in this Indenture until a successor replaces it
and, thereafter, means the successor and, for purposes of any provision
contained herein and required by the TIA, each other obligor on the Securities.



 


“Company
Order” means a written order signed in the name of the Company by an Officer of
the Company. 


 


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


 


“Depositary”
means, with respect to the Securities issuable in whole or in part in global
form, the Person specified pursuant to Section 2.13 hereof as the initial
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture and thereafter “Depositary” shall mean or include such successor. 


 


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


 


“GAAP”
means generally accepted accounting principles in the United States of America
as in effect as of the Closing Date set forth in: 


 


(1)           the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, 


 


(2)           statements and pronouncements
of the Financial Accounting Standards Board, 


 


(3)           such other statements by
such other entities as approved by a significant segment of the accounting
profession, and 


 


(4)           the rules and regulations of
the SEC governing the inclusion of financial statements (including pro forma
financial statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff
of the SEC. 


 


All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP. 


 


“Global
Security,” when used with respect to any Series of Securities, means a security
in the form of a global security in definitive, fully registered form and
bearing the legend set forth in Section 2.13(d), which shall be deposited
on behalf of the purchasers of Securities of the Series represented thereby
with the Securities Custodian or pursuant to the Depositary’s instruction, and
registered in the name of the Depositary or a 


 


2

















 


nominee
of the Depositary, duly executed by the Company and authenticated by the
Trustee as provided in this Indenture. 


 


“Guarantee” means any
obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person: 


 


(1)           to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise), or 


 


(2)           entered into for purposes of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); 


 


provided, however,
that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. 
The term “Guarantee” used as a verb has a corresponding meaning.  The term “Guarantor” shall mean any Person
Guaranteeing any obligation. 


 


“Holder”
means the Person in whose name a Security is registered on the Registrar’s
books. 


 


“Indebtedness”
has the meaning specified in the applicable resolution of the Board of
Directors, supplemental indenture or Officers’ Certificate relating to a
particular Series of Securities. 


 


“Indenture”
means this indenture, as amended, supplemented or restated from time to time
and shall include the terms of the, or those particular Series of, Securities
established as contemplated by Section 2.02; provided, however, that, if at any
time more than one Person is acting as Trustee under this instrument, “Indenture”
shall mean, with respect to any one or more Series of Securities for which a
Person is Trustee, this instrument as originally executed or as it may from
time to time be amended, supplemented or restated by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of the, or those particular Series of, Securities
for which such Person is Trustee established as contemplated by Section 2.02,
exclusive, however, of any provisions or terms which relate solely to other
Series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person,
as such Trustee, was not a party. 


 


“Legal
Holiday” means a Saturday, Sunday or other day on which the Trustee or banking
institutions are not required by law or regulation to be open in the State of
New York. 


 


3

















 


“Obligations”
means with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements and other amounts
payable pursuant to the documentation governing such Indebtedness. 


 


“Officer”
means the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the Chief Accounting Officer, the President, any Vice
President (regardless of any vice presidential designation), the Treasurer or
any Assistant Treasurer or the Secretary or any Assistant Secretary of the
Company. 


 


“Officers’
Certificate” means a certificate signed by two Officers and delivered to the
Trustee. 


 


“Opinion
of Counsel” means a written opinion from legal counsel who may be an employee
of or counsel to the Company or other counsel who is reasonably acceptable to
the Trustee. 


 


“Original
Issue Discount Security” means (i) any Security that provides for an
amount less than the stated principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof and (ii) any other
security which is issued with “original issue discount” within the meaning of
Section 1271 through 1275 of the Code. 


 


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


 


“principal”
of a Security means the principal amount of such Security (or, in the case of
Original Issue Discount Securities, the portion thereby specified in the terms
of such Securities) plus, unless the context otherwise indicates, the premium,
if any, payable on the Security which is due or overdue or is to become due at
the relevant time. 


 


“SEC”
means the Securities and Exchange Commission. 


 


“Securities”
means the securities issued under this Indenture. 


 


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


 


“Series”
or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02
hereof. 


 


“Securities
Custodian” means the custodian with respect to a Global Security of any Series
of Securities (as appointed by the Depositary) or any successor person thereto,
who shall initially be the Trustee. 


 


“Senior
Indebtedness” means (a) the principal of and premium, if any, and interest on
and fees, costs, enforcement expenses, collateral protection expenses and other
reimbursements or indemnity obligations relating to all indebtedness,
obligations and  


 


4

















 


other
liabilities, contingent or otherwise, of the Company, whether outstanding on
the date of this Indenture or thereafter incurred or created, (i) for money
borrowed by the Company that is evidenced by a note, bond, debenture, loan
agreement or similar instrument or agreement, (ii) for money borrowed by, or
non-contingent obligations of, others and either assumed or guaranteed,
directly or indirectly, by the Company, (iii) in respect of letters of credit
and banker’s acceptances or similar transactions issued or made by banks, or
(iv) constituting purchase money indebtedness, (b) all deferrals, renewals,
extensions, refinancings, restructurings and refundings of, and amendments,
modifications and supplements to, any such indebtedness, (c) all obligations of
the Company for the payment of money relating to capital lease obligations and
(d) all other general unsecured obligations. 
As used in the preceding sentence the term “purchase money indebtedness”
means indebtedness, the proceeds of which are used, directly or indirectly, to
purchase property or which is evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest)
issued or assumed as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or otherwise.  Notwithstanding anything to the contrary in
this Indenture or the Securities, Senior Indebtedness shall not include: (i)
indebtedness or other obligations owed by the Company to any of its
Subsidiaries or Affiliates; (ii) any liabilities for taxes owed or owing by the
Company; (iii) trade account payables incurred in the ordinary course of
business; or (iv) any other indebtedness of the Company which, by its terms or
the terms of the instrument creating or evidencing it, is subordinate in right
of payment to or pari passu with the Subordinated Securities, as the case may
be. 


 


“Significant
Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of
the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the SEC. 


 


“Stated
Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the Company unless such contingency has
occurred). 


 


“Subsidiary” of any Person
means any corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by: 


 


(1)           such Person, 


 


(2)           such Person and one or more
Subsidiaries of such Person, or 


 


(3)           one or more Subsidiaries of
such Person. 


 


5














 


“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb),
as in effect on the Closing Date, except as provided in Section 9.03.


 


“Trust
Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, or any
other officer of the Trustee who customarily performs functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.


 


“Trustee”
means the party named as such in this Indenture until a successor replaces it
and, thereafter, means the successor.  If
at any time there is more than one Person acting as Trustee hereunder, “Trustee”
as used with respect to the Securities of any Series shall mean the
Trustee with respect to the Securities of that Series.


 


“Uniform
Commercial Code” means the New York Uniform Commercial Code as in effect from
time to time.


 


“U.S.
Government Obligations” means direct obligations (or certificates representing
an ownership interest in such obligations) of the United States of America
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer’s option.


 


“Wholly
Owned Subsidiary” means a Subsidiary of the Company all the Capital Stock of
which (other than directors’ qualifying shares) is owned by the Company or
another Wholly Owned Subsidiary.


 


SECTION 1.02.  Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Agent
  Members”

  	
   

  	
   

  	
  2.13(g)

  
	
  “Bankruptcy
  Law”

  	
   

  	
   

  	
  6.01

  
	
  “covenant
  defeasance option”

  	
   

  	
   

  	
  8.01(b)

  
	
  “Custodian”

  	
   

  	
   

  	
  6.01

  
	
  “Event
  of Default”

  	
   

  	
   

  	
  6.01

  
	
  “legal
  defeasance option”

  	
   

  	
   

  	
  8.01(b)

  
	
  “Paying
  Agent”

  	
   

  	
   

  	
  2.04(a)

  
	
  “Registrar”

  	
   

  	
   

  	
  2.04(a)

  
	
  “Subordinated
  Securities”

  	
   

  	
   

  	
  10.01

  
	
  “Successor
  Company”

  	
   

  	
   

  	
  5.01(a)(1)

  



 


SECTION 1.03.  Incorporation by Reference of Trust
Indenture Act.  This Indenture is
subject to the mandatory provisions of the TIA which are incorporated by
reference in and made a part of this Indenture. 
The following TIA terms have the following meanings:


 


6

















 


“Commission”
means the SEC;


 


“indenture securities” means the Securities;


 


“indenture
security holder” means a Holder;


 


“indenture
to be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee” means the Trustee; and


 


“obligor”
on the indenture securities means the Company and any other obligor on the
indenture securities.


 


All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have
the meanings assigned to them by such definitions.


 


SECTION 1.04.  Rules of Construction.  Unless the context otherwise requires:


 


(1)           a term has the meaning
assigned to it;


 


(2)           an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(3)           “or” is not exclusive;


 


(4)           “including” means including
without limitation;


 


(5)           words in the singular
include the plural and words in the plural include the singular;


 


(6)           unsecured Indebtedness shall
not be deemed to be subordinate or junior to secured Indebtedness merely by
virtue of its nature as unsecured Indebtedness;


 


(7)           secured Indebtedness shall
not be deemed to be subordinate or junior to any other secured Indebtedness
merely because it has a junior priority with respect to the same collateral;


 


(8)           the principal amount of any
non-interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP; and


 


(9)           the principal amount of any
preferred stock shall be (A) the maximum liquidation value of such
preferred stock or (B) the maximum mandatory redemption or mandatory
repurchase price with respect to such preferred stock, whichever is greater.


 


7

















 


ARTICLE 2


 


The Securities


 


SECTION 2.01.  Issuable in Series.  The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued in one or more Series as
the Company may authorize from time to time. 
All Securities of a Series shall be substantially identical except
as may be set forth in a resolution of the Board of Directors, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a resolution of the Board of
Directors.  In the case of Securities of
a Series to be issued from time to time, the resolution of the Board of
Directors, supplemental indenture or Officers’ Certificate may provide for the
method by which specified terms (such as interest rate, maturity date, record
date or date from which interest shall accrue) are to be determined.  Securities may differ between Series in
respect of any matters, provided that all Series of Securities shall be
equally and ratably entitled to the benefits of this Indenture.  The Securities may be subordinated in right
of payment to Senior Indebtedness as provided in Article 10.


 


SECTION 2.02.  Establishment of Terms of Series of
Securities.  At or prior to the
issuance of any Securities within a Series, the following shall be established
(as to the Series generally, in the case of Section 2.02(a), and
either as to such Securities within the Series or as to the Series generally,
in the case of Sections 2.02(b) through 2.02(dd)) by a resolution of
the Board of Directors, a supplemental indenture or an Officers’ Certificate
pursuant to authority granted under a resolution of the Board of Directors:


 


(a)           the title of the Securities
of the Series (which shall distinguish the Securities of that particular Series from
the Securities of any other Series);


 


(b)           the price or prices of the
Securities of the Series;


 


(c)           any limit upon the aggregate
principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series);


 


(d)           the date or dates on which
the principal with respect to the Securities of the Series is payable or
the manner in which such dates are determined;


 


(e)           the rate or rates (which may
be fixed or variable) at which the Securities of the Series shall bear
interest, if any, or the method of determining such rate or rates, the date or
dates from which such interest, if any, shall accrue, the dates on which such
interest, if any, shall be payable or the method by which such dates will be
determined, the record dates for the determination of holders thereof to whom
such interest, if any, is payable (in the case of Securities in registered form),
and the basis upon which such interest, if any, will be calculated if other
than that of a 360-day year of twelve 30-day months;


 


8

















 


(f)            the currency or currencies
in which Securities of the Series shall be denominated, if other than U.S.
dollars, and if payments of principal or interest, if any, with respect to the
Securities of the Series are to be made in one or more currencies other
than that or those in which the Securities of the Series are denominated,
the manner in which the exchange rate with respect to such payments will be
determined;


 


(g)           the place or places where
the principal, premium, if any, and interest, if any, with respect to
Securities of such Series shall be payable or the method of such payment,
if by wire transfer, mail or other means; the place or places where the
Securities of the Series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
Securities of the Series and this Indenture may be served;


 


(h)           the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Securities of the Series may be redeemed, in whole or in part at
the option of the Company or otherwise;


 


(i)            the form of the Securities
of the Series;


 


(j)            the Company’s obligation, if
any, to redeem, purchase or repay the Securities of the Series, in whole or in
part, pursuant to any sinking fund or analogous provisions or at the option of
a Holder of such Securities and the price or prices at which, 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 obligations;


 


(k)           the terms, if any, upon
which the Securities of the Series may be convertible into or exchanged
for the Company’s common stock, preferred stock, other debt securities or
Indebtedness, warrants for common stock, preferred stock or other equity
securities, or other securities of any kind or securities of another Person and
the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the
manner in which the conversion or exchange price or rate may be adjusted, the
conversion or exchange period and any other additional provisions;


 


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


 


(m)          whether the amount of
payment of principal and premium, if any, or interest, if any, on the
Securities of the Series may be determined with reference to an index,
formula or other method (which index, formula or method may be based, without
limitation, on one or more currencies, commodities, equity indices, or other
indices), and the manner in which such amounts shall be determined;


 


(n)           if the principal amount
payable at the Stated Maturity of Securities of the Series will not be
determinable as of any one or more dates prior to such Stated Maturity, the
amount that will be deemed to be such principal amount as of any such date for
any purpose, including the principal amount thereof which will be due and
payable 


 


9

















 


upon any maturity other than the Stated Maturity or
which will be deemed to be outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined),
and if necessary, the manner of determining the equivalent thereof in U.S.
dollars;


 


(o)           any addition to, change in,
or deletion from the covenants set forth in Articles 4, 5 or 8 that
applies to Securities of the Series;


 


(p)           if other than the principal
amount thereof, the portion of the principal amount of the Securities of the Series that
shall be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02 or provable in bankruptcy or the method by which
such portion shall be determined;


 


(q)           the terms, if any, of the
transfer, mortgage, pledge or assignment as security for the Securities of the Series of
any properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the TIA are applicable and any
corresponding changes to provisions of this Indenture as then in effect;


 


(r)            any addition to, change in
or deletion from the Events of Default with respect to any Securities of the Series and
any change in the right of the Trustee or the Holders of such Series of
Securities to declare the principal and interest, if any, on such Series of
Securities due and payable pursuant to Section 6.02;


 


(s)           if the Securities of the Series shall
be issued in whole or in part in the form of a Global Security, the terms and
conditions, if any, upon which such Global Security may be exchanged in whole
or in part for other individual Securities of such Series in definitive
registered form, the depositary for such Global Security and the form of any
legend or legends to be borne by any such Global Security;


 


(t)            any Trustee, authenticating
agent, Paying Agent, transfer agent, Registrar or other agent;


 


(u)           the applicability of, and
any addition to or change in, the covenants, definitions or other terms set
forth in the Indenture which applies to Securities of the Series;


 


(v)           whether the Securities shall
be issued with Guarantees and, if so, the terms, if any, of any Guarantee of
the payment of principal and interest, if any, with respect to Securities of
the Series and any corresponding changes to the provisions of this
Indenture as then in effect;


 


(w)          whether the Securities shall
be issued as senior Securities, senior subordinated Securities or Subordinated
Securities or any combination thereof; whether the Securities of such Series are
subject to any modification of, addition to or provision in lieu of any of the
provisions of Article 10 hereof;


 


10

















 


(x)            with regard to Securities of
the Series that do not bear interest, the dates for certain required
reports to the Trustee;


 


(y)           any U.S. or Canadian Federal
income tax consequences applicable to the Securities;


 


(z)            the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Securities of the Series will be repurchased by the Company at the
option of the Holder and other detailed terms and provision of such repurchase
obligations;


 


(aa)         if the Company has the right
to defer the payment of interest, the maximum length that the payment of
interest may be deferred;


 


(bb)         the terms and conditions of
any warrants that may be offered by the Company in connection with Securities
of the Series;


 


(cc)         the securities exchange or
quotation system, if any, upon which Securities of the Series will be
listed or quoted and any CUSIP number, if 
any; and


 


(dd)         any other terms of
Securities of the Series (which may modify, amend or delete any provision
of this Indenture insofar as it applies to such Series).


 


All
Securities of any one Series need not be issued at the same time and may
be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the resolution of the Board of Directors,
supplemental indenture or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide
for issuances of additional Securities of such Series, unless otherwise
provided in such resolution of the Board of Directors, supplemental indenture
or Officers’ Certificate.


 


The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage.


 


SECTION 2.03.  Execution and Authentication.  One or more Officers shall sign the
Securities for the Company by manual or facsimile signature.


 


If
an Officer whose signature is on a Security no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.


 


A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security.  The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.  A Security shall be dated the date of its
authentication, unless otherwise provided by a resolution of the Board of
Directors, a supplemental indenture or an Officers’ Certificate.


 


The
Trustee shall at any time, and from time to time, authenticate Securities for
original issue in the principal amount provided in a resolution of the Board of
Directors, 


 


11

















 


supplemental
indenture or Officers’ Certificate, upon receipt by the Trustee of a Company
Order.  The Company Order may provide
that the Securities that are the subject thereof shall be authenticated and
delivered by the Trustee upon the written order of Persons designated in the
Company Order, and that such Persons are authorized to specify the terms and
conditions of such Securities, to the extent permitted by the resolution of the
Board of Directors, Officers’ Certificate and/or supplemental indenture (if
any) relating thereto. If not all the Securities of any Series are to be
issued at one time and if the resolution of the Board of Directors, Officers’
Certificate or supplemental indenture establishing such Series shall so
permit, such Company Order may set forth procedures for the issuance of such
Securities and determination of the terms of particular Securities of such Series such
as interest rate, maturity date, date of issuance and date from which interest
shall accrue.


 


The
aggregate principal amount of Securities of any Series outstanding at any
time may not exceed any limit upon the maximum principal amount for such Series set
forth in the resolution of the Board of Directors, supplemental indenture or
Officers’ Certificate delivered pursuant to Section 2.02, except as
provided in Section 2.08.


 


The
Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate the Securities. 
The Company may also appoint an authenticating agent.  Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.


 


SECTION 2.04.  Registrar and Paying Agent.  (a) The Company shall maintain, with
respect to each Series of Securities, at the place or places specified
with respect to such Series pursuant to Section 2.02, an office or
agency where Securities of such Series may be presented for registration
of transfer or for exchange (the “Registrar”) and an office or agency where
Securities of such Series may be presented for payment (the “Paying Agent”).  The Registrar shall keep a register with
respect to each Series of Securities and of their transfer and
exchange.  The Company may have one or
more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent.


 


The
Company shall enter into an appropriate agency agreement with any Registrar,
Paying Agent or co-registrar or co-paying agent not a party to this Indenture,
which shall incorporate the terms of the TIA. 
The agreement shall implement the provisions of this Indenture that
relate to such agent.  The Company shall
notify the Trustee of the name and address of any such agent.  If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07.  The Company or any Wholly Owned Subsidiary
incorporated or organized within the United States of America or Canada may act
as Paying Agent, Registrar, co-registrar or transfer agent.


 


12

















 


The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents, and the Company may require a Holder to
pay any taxes and fees required by law or permitted by the Indenture.  The Registrar need not register transfer or
exchanges of Securities selected for redemption (except, in the case of
Securities to be redeemed in part, the portion thereof not to be redeemed) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed, or any Securities for a period of
15 days before a selection of an interest payment date.  The Holder of a Security may be treated as
the owner of such Security for all purposes.


 


(b)           The Company or any
Subsidiary may act as Registrar or (except for purposes of Article 8)
Paying Agent.  The Company initially
appoints the Trustee as Registrar and Paying Agent for each Series of
Securities unless another Registrar or Paying Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.


 


(c)           The Company may remove,
without notice to any Holder, any Registrar or Paying Agent upon written notice
to such Registrar or Paying Agent and to the Trustee; provided, however,
that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered
into by the Company and such successor Registrar or Paying Agent, as the case
may be, and delivered to the Trustee or (ii) written notification to
the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above.


 


(d)           Except as the Company and
the Trustee may otherwise agree or as otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, the Company shall promptly file with the Trustee
by each January 15th for which original issue discount reporting is
required a written notice specifying the amount of the original issue discount,
if any, accrued on the Securities of a Series for the previous calendar
year, including daily rates and accrual periods, and such other information
relating to original issue discount as may be required under the Code and
applicable regulations, as amended from time to time.


 


SECTION 2.05.  Paying Agent To Hold Money in Trust.  No later than 10:00 a.m. (New York City
time) on each due date of the principal of and interest on the Securities of
any Series, the Company shall deposit with the Paying Agent (or if the Company
or a Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of Holders entitled thereto) a sum sufficient to pay such principal and
interest when so becoming due.  The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders of
the applicable Series of Securities or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities of
the applicable Series and shall notify the Trustee in writing of any
default by the Company in making any such payment.  If the Company or a Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund.  The Company at any
time may 


 


13

















 


require a Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed by the Paying Agent.  Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.


 


SECTION 2.06.  Lists of Holders of Securities.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of each Series of Securities, separately by
Series, and shall otherwise comply with TIA Section 312(a).  If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five Business Days
before each interest payment date and at such other times as the Trustee may
reasonably request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders of each Series of
Securities.  Neither the Company nor the
Trustee will be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the TIA.


 


SECTION 2.07.  Transfer and Exchange.  (a) The Securities shall be issued in
registered form and shall be transferable only in compliance with the Indenture
and upon the surrender of a Security for registration of transfer.  When a Security is presented to the Registrar
or a co-registrar with a request to register a transfer, the Registrar shall
register the transfer as requested if the requirements of this Indenture and
Section 8-401(1) of the Uniform Commercial Code are met.  When Securities of a Series are
presented to the Registrar or a co-registrar with a request to exchange them
for an equal principal amount of Securities of the same Series in other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met.


 


(b)           To permit registration of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar’s written request.  The Company may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section.  The Company shall not be required to make and
the Registrar need not register transfer or exchanges of Securities selected
for redemption in accordance with the terms of this Indenture (except, in the
case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities for a period of 15 days before the mailing of
a notice of redemption of Securities to be redeemed or any Securities for a
period of 15 days before an interest payment date.


 


Prior
to the due presentation for registration of transfer of any Security, the
Company, the Trustee, the Paying Agent and the Registrar may deem and treat the
Person in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and (subject to
the terms of the Securities) interest, if any, on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none of
the Company, the Trustee, the Paying Agent, or the Registrar shall be affected
by notice to the contrary.


 


Any
Holder of a beneficial interest in a Global Security shall, by acceptance of
such beneficial interest, agree that transfers of beneficial interest in such
Global Security may be effected only through a book-entry system maintained by
(a) the Holder of such 


 


14

















 


Global
Security (or its agent) or (b) any Holder of a beneficial interest in such
Global Security, and that ownership of a beneficial interest in such Global
Security shall be required to be reflected in a book entry.


 


All
Securities issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same Indebtedness and shall be entitled to the same benefits
under this Indenture as the Securities surrendered upon such transfer or
exchange.


 


SECTION 2.08.  Replacement Securities.  If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security of the same Series if the
requirements of Section 8-405 of the Uniform Commercial Code are met and
the Holder satisfies any other reasonable requirements of the Trustee.  Such Holder shall furnish to the Company and
to the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the
Holder shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft, of such Security and of the
ownership thereof.  The Company and the
Trustee may charge the Holder for their expenses in replacing a Security.


 


Every
replacement Security is an additional Obligation of the Company.


 


In
case the mutilated, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may pay the
Security instead of issuing a replacement Security. Upon the issuance of any
replacement Security under this Section, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.


 


The
provisions of this Section 2.08 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, lost, destroyed or wrongfully taken Securities.


 


SECTION 2.09.  Outstanding Securities.  Securities outstanding at any time are all
Securities authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation,  those
described in this Section as not outstanding and, solely to the extent
provided for in Article 8, Securities which are subject to legal
defeasance or covenant defeasance as provided in Section 8.01.  Subject to Section 11.06, a Security
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security.


 


If
a Security is replaced or paid pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona  fide purchaser
in whose hands such Security is a valid obligation of the Company.


 


If
the Paying Agent segregates and holds in trust, in accordance with this Indenture,
on or after a redemption date or maturity date money sufficient to pay all


 


15














 


principal
and interest payable on that date with respect to such Securities (or portions
thereof) to be redeemed or maturing, as the case may be, then on and after that
date such Securities (or portions thereof) cease to be outstanding and interest
on them ceases to accrue.


 


Unless
otherwise provided for a particular Series of Securities by a resolution
of the Board of Directors, a supplemental indenture or an Officers’
Certificate, in determining whether the Holders of the requisite principal
amount of outstanding Securities of any Series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, 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 6.02.


 


SECTION 2.10.  Temporary Securities.  Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities.  Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities.  Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities and deliver
them in exchange for temporary Securities of the same Series upon
surrender of such temporary Securities at the office or agency of the Company,
without charge to the Holder.  Until so
exchanged, the temporary Securities will be entitled to the same benefits under
this Indenture as definitive Securities.


 


SECTION 2.11.  Cancellation.  The Company at any time may deliver
Securities to the Trustee for cancellation. 
The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment.  The Trustee and no one else
shall cancel all Securities surrendered for registration of transfer, exchange,
payment or cancellation and deliver a certificate of such cancellation to the
Company upon request.  The Trustee shall
retain all canceled Securities in accordance with its standard procedures
(subject to the record retention requirements of the Exchange Act), and copies
of the canceled Securities shall be provided to the Company upon the Company’s
written request.  The Company may not
issue new Securities to replace Securities it has redeemed, paid in full or
delivered to the Trustee for cancellation. 
If the Company acquires any of the Securities, such acquisition shall
not operate as a redemption or satisfaction of indebtedness represented by such
Securities unless or until the same are delivered to the Trustee for
cancellation.  The Trustee shall not
authenticate Securities in place of cancelled Securities other than pursuant to
the terms of this Indenture.


 


SECTION 2.12.  Defaulted Interest.  If the Company defaults in a payment of
interest on a Series of Securities, such installment of interest shall
forthwith cease to be payable to the Holders in whose names the Securities were
registered on the regular record date applicable to such installment of
interest.  Defaulted interest (plus
interest on such defaulted interest to the extent lawful) shall be paid in any
lawful manner.  The Company may pay the
defaulted interest to the persons who are Holders of such Series of


 


16

















 


Securities on a subsequent special record date.  The Company shall fix or cause to be fixed
any such special record date and payment date and shall promptly mail or cause
to be mailed to each Holder of Securities of such Series a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid.


 


SECTION 2.13.  Global Securities.


 


(a)           Terms of Securities.  A resolution of the Board of Directors, a
supplemental indenture or an Officers’ Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of
one or more Global Securities and the Depositary for such Global Security or
Securities.


 


(b)           Transfer and Exchange.  Notwithstanding any provisions to the
contrary contained in Section 2.07 of this Indenture and in addition
thereto, and unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, any Global Security shall be exchangeable pursuant
to Section 2.07 of this Indenture for Securities registered in the names
of Holders other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a “clearing agency” registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depositary within
120 days of such event, (ii) the Company in its sole discretion
notifies the Trustee in writing that such Global Security shall be so
exchangeable or (iii) the Depositary so requests such exchange in writing
delivered through the Depositary, if an Event of Default with respect to the
Securities represented by such Global Security shall have occurred and be
continuing.  Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depositary shall direct in writing
in an aggregate principal amount equal to the principal amount of the Global
Security with like tenor and terms.


 


(c)           Except as provided in Section 2.13(b), a Global
Security may not be transferred except as a whole by the Depositary with
respect to such Global Security to a nominee of such Depositary, by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by the Depositary or any such nominee to a successor Depositary or a nominee of
such a successor Depositary.


 


(d)           Legend.  Any
Global Security issued hereunder shall bear such legend as is provided for a
particular Series of Securities by a resolution of the Board of Directors,
a supplemental indenture or an Officers’ Certificate.


 


(e)           Acts of Holders. 
Agent Members will have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary, and the Depositary
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and Holder of such Global Security for all
purposes whatsoever.  Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and otherwise
authorize any Person (including any Agent Member and any 


 


17

















 


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 this 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.


 


(f)            Payments. 
Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.02, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder thereof.


 


(g)           Consents, Declaration and Directions.  Except as provided in Section 2.13(e),
members of, or participants in, the Depository (“Agent Members”) shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as Securities Custodian or under
such Global Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in
any Global Security.


 


SECTION 2.14.  CUSIP Numbers and ISINs.  The Company in issuing any Series of
Securities may use “CUSIP” numbers and ISINs (if then generally in use) and, if
so, the Trustee shall use “CUSIP” numbers and ISINs in notices as a convenience
to Holders; provided, however, 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 (including a notice of
redemption or exchange) and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such notice or notice
of redemption or exchange shall not be affected by any defect in or omission of
such numbers.  The Company will promptly
notify the Trustee in writing of any change in the “CUSIP” or ISIN numbers.


 


SECTION 2.15.  Computation of Interest.  Except as otherwise specified as contemplated
by Section 2.02 for Securities of any Series, any interest on the
Securities of each Series shall be computed on the basis of a 360-day year
of twelve 30-day months.


 


ARTICLE 3


 


Redemption


 


SECTION 3.01.  Notices to Trustee.  If any Series of Securities is
redeemable prior to the Stated Maturity thereof and the Company elects to
redeem Securities of such Series pursuant to the terms of such Securities,
it shall notify the Trustee in writing of the redemption date, the principal
amount of Securities of such Series to be redeemed and the redemption
price.


 


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Unless
otherwise provided for a particular Series of Securities by a resolution
of the Board of Directors, a supplemental indenture or an Officers’
Certificate, the Company shall give each notice to the Trustee provided for in
this Section at least 45 days before the redemption date unless the
Trustee consents to a shorter period. 
Such notice shall be accompanied by an Officers’ Certificate to the
effect that such redemption will comply with the conditions in this Indenture
and the Securities of such Series.  Any
such notice may be cancelled by the Company at any time prior to notice of such
redemption being sent to any Holder of Securities of such Series and shall
thereby be void and of no effect unless the Trustee has sent the notice of
redemption pursuant to Section 3.03 below.


 


SECTION 3.02.  Selection of Securities to Be Redeemed.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, if fewer than all the Securities of a particular Series are
to be redeemed, the Trustee, subject to the procedures of the Depositary, shall
select, not more than 60 days prior to the redemption date, the Securities of
such Series to be redeemed pro rata or by lot or by a method that complies
with applicable legal and securities exchange requirements, if any, and that
the Trustee in its sole discretion shall deem to be fair and appropriate.  The Trustee shall make the selection from
outstanding Securities of such Series not previously called for
redemption.  Except as otherwise provided
as to any particular Series of Securities, Securities and portions thereof
that the Trustee selects shall be in amounts equal to the minimum authorized
denomination for Securities of the Series to be redeemed or any integral
multiple thereof, except that if all of the Securities of the Series are
to be redeemed, the entire outstanding amount of the Securities of the Series held
by such Holder, even if not equal to the minimum authorized denomination for
the Securities of that Series, shall be redeemed.  Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.  The Trustee shall notify
the Company promptly in writing of the Securities or portions of Securities to
be redeemed and in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.


 


SECTION 3.03.  Notice of Redemption.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, at least 30 days but not more than
60 days before a date for redemption of Securities, the Company, or the
Trustee (at the written direction of the Company), shall send a notice of
redemption by first-class mail to each Holder of Securities to be redeemed at
such Holder’s registered address.


 


The
notice shall identify the Securities (including CUSIP numbers) to be redeemed
and shall state:


 


(1)           the redemption date;


 


(2)           the redemption price, which shall set forth the price
fixed in accordance with the terms of the Securities of the Series to be
redeemed, plus accrued interest, if any, to the date fixed for redemption;


 


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(3)           the name and address of the Paying Agent;


 


(4)           that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;


 


(5)           if fewer than all the outstanding Securities of such Series are
to be redeemed, the identification and principal amounts of the particular
Securities to be redeemed;


 


(6)           that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the redemption date; and


 


(7)           that no representation is made as to the correctness or
accuracy of the CUSIP number or ISIN, if any, listed in such notice or printed
on the Securities.


 


At
the Company’s written request, the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense.  In such event, the Company shall provide the
Trustee with the information required by this Section.


 


SECTION 3.04.  Effect of Notice of Redemption.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, once notice of redemption is sent to Holders,
Securities called for redemption shall become due and payable on the redemption
date and at the redemption price stated in the notice.  Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price stated in the notice, plus
accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
interest payment date if the redemption date is after a regular record date and
on or prior to the interest payment date). 
Failure to give notice or any defect in the notice to any Holder shall
not affect the validity of the notice to any other Holder.


 


SECTION 3.05.  Deposit of Redemption Price.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, prior to 11:00 a.m., New York City time, on
the redemption date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities or portions thereof to be
redeemed on that date other than Securities or portions of Securities called
for redemption which have been delivered by the Company to the Trustee for cancellation.  Interest, if any, shall cease to accrue on
Securities or portions thereof called for redemption on and after the date the
Company has deposited with the Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid interest, if any, on the Securities to be
redeemed, unless the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture.


 


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SECTION 3.06.  Securities Redeemed in Part.  Upon surrender of a certificated Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company’s expense) a new certificated
Security equal in principal amount to the unredeemed portion of the certificated
Security surrendered.


 


ARTICLE 4


 


Covenants


 


SECTION 4.01.  Payment of Securities.  The Company shall promptly pay the principal
of and interest, if any, on each Series of Securities on the dates and in
the manner provided in such Series of Securities and in this
Indenture.  Principal and interest, if
any, shall be considered paid on the date due if no later than 10:00 a.m.
(New York City time) on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal and
interest, if any, then due.


 


SECTION 4.02.  SEC Reports.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC and provide the Trustee and
Holders and prospective Holders (upon request) within 15 days after it
files them with the SEC, copies of its annual report and the information,
documents and other reports that are specified in Sections 13 and 15(d) of
the Exchange Act.  In addition, the
Company shall furnish to the Trustee and the Holders, promptly upon their
becoming available, copies of the annual report to shareholders and any other
information provided by the Company to its public shareholders generally.  The Company also shall comply with the other
provisions of Section 314(a) of the TIA.  Delivery of such reports, information and
documents to the Trustee hereunder is for informational purposes only and the
Trustee’s receipt of such does not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates or certificates delivered pursuant to Section 4.03).


 


SECTION 4.03.  Compliance Certificate.  The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company a
certificate signed by the principal accounting officer, principal financial
officer or principal executive officer of the Company complying with TIA Section 314(a)(4) stating
(i) that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made with a view to determining
whether the Company has fulfilled its obligations under this Indenture and
(ii) that, to the knowledge of such officer, no Default or Event of
Default occurred during such period (or, if a Default or Event of Default
hereunder shall have occurred, describing all such Defaults or Events of
Default hereunder of which such officer may have knowledge and what action the
Company has taken, is taking and/or proposes to take with respect thereto).


 


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SECTION 4.04.  Further Instruments and Acts.  Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.


 


ARTICLE 5


 


Successor Company


 


SECTION 5.01.  When Company May Merge or Transfer
Assets.  (a) Unless otherwise
provided for a particular Series of Securities by a resolution of the
Board of Directors, a supplemental indenture or an Officers’ Certificate, the
Company shall not, directly or indirectly, consolidate with or merge with or
into, or convey, transfer or lease all or substantially all its assets, in one
or a series of related transactions, to, any Person, unless:


 


(1)           Either the Company shall be the continuing corporation, or
the resulting, surviving or transferee Person (the “Successor Company”) shall be
a corporation organized and existing under the laws of the United States of
America, any State thereof, the District of Columbia or the laws of Canada or
any province or territory thereunder and the Successor Company (if not the
Company) shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture;


 


(2)           immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and


 


(3)           the Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.


 


(b)           The Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture (as modified or supplemented by a resolution of the Board of
Directors, supplemental indenture or an Officers’ Certificate), and the
predecessor Company, other than in the case of a lease, shall be released from
the obligation to pay the principal of, premium, if any, and interest, if any,
on the Securities.  The Successor Company
may cause to be signed, and may issue either in its own name or in the name of
the Company prior to such succession any or all of the Securities issuable
hereunder, which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of the Successor Company instead
of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities, which previously shall have been signed and delivered by the
Officers of the Company to the Trustee for authentication, and any Securities,
which the Successor Company thereafter shall cause to be signed and delivered
to the Trustee for


 


22

















 


that purpose. All of the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.


 


(c)           Notwithstanding the foregoing:


 


(1)           any Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to the Company or any other
Subsidiary; and


 


(2)           the Company may merge with an Affiliate incorporated
solely for the purpose of reincorporating the Company in another jurisdiction
within the United States of America, any State thereof, the District of
Columbia or Canada to realize tax or other benefits.


 


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


 


ARTICLE 6


 


Defaults and Remedies


 


SECTION 6.01.  Events of Default.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, each of the following constitutes an “Event of
Default” with respect to each Series of Securities:


 


(1)           the Company defaults in any payment of interest on any
Security of that Series when the same becomes due and payable, and such
default continues for 30 days;


 


(2)           the Company defaults in the payment of principal of any
Security of that Series when the same becomes due and payable at its
Stated Maturity, upon optional redemption or required repurchase, upon
declaration of acceleration or otherwise;


 


(3)           the Company fails to comply with its obligations under
Section 5.01;


 


(4)           the Company fails to comply with its covenants or
agreements with respect to the Securities of that Series contained in such
Securities or in this Indenture (other than those referred to in clauses (1),
(2), or (3) above) and such failure continues for 90 consecutive days
after the notice from the Trustee or the Holders specified below;


 


(5)           the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:


 


23

















 


(A)          commences a voluntary case;


 


(B)           consents to the entry of an order for relief against it in
an involuntary case;


 


(C)           consents to the appointment of a Custodian of it or for
any substantial part of its property; or


 


(D)          makes a general assignment for the benefit of its
creditors;


 


or
takes any comparable action under any foreign laws relating to insolvency;


 


(6)           a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:


 


(A)          is for relief against the Company or any Significant
Subsidiary in an involuntary case;


 


(B)           appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or


 


(C)           orders the winding up or liquidation of the Company or any
Significant Subsidiary;


 


or
any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 90 consecutive days.


 


The
foregoing shall constitute Events of Default whatever the reason for any such
Event of Default and whether such Event of Default is voluntary or involuntary
or is 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.


 


Notwithstanding
the foregoing, unless otherwise provided for a particular Series of Securities
by a resolution of the Board of Directors, a supplemental indenture or an
Officers’ Certificate, a default under Section 6.01(4) shall not
constitute an Event of Default with respect to any Series of Securities
until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Securities of that Series notify the
Company and the Trustee in writing of the default and the Company does not cure
such default within any applicable time specified in Section 6.01(4) hereof
after receipt of such notice.


 


The
term “Bankruptcy Law” means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. 
The term “Custodian” means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.


 


The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any event which with the giving of notice or the
lapse of time


 


24

















 


would
become an Event of Default under Section 6.01(4), its status and what
action the Company is taking or proposes to take with respect thereto.


 


SECTION 6.02.  Acceleration.  If an Event of Default (other than an Event
of Default specified in Section 6.01(5) or 6.01(6)) occurs and is
continuing with respect to any Series of Securities, unless the principal
of all the Securities of such Series have already become due and payable,
the Trustee by notice to the Company or the Holders of at least 25% in
principal amount of the outstanding Securities of that Series by written
notice to the Company and the Trustee may declare the principal of, premium, if
any, and accrued but unpaid interest, if any, on all the Securities of that Series to
be due and payable.  Upon such a
declaration, such principal and interest, if any, will be due and payable
immediately (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).  If an
Event of Default specified in Section 6.01(5) or 6.01(6) with
respect to the Company occurs, the principal of and interest, if any, on all
the Securities of each Series shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders.  The Holders of a majority in
principal amount of the Securities of any Series by written notice to the
Trustee may rescind an acceleration of that Series of Securities and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to such Series of
Securities have been cured or waived or otherwise remedied except nonpayment of
principal of or interest, if any, on all Securities of that Series that
has become due solely because of acceleration. 
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.


 


For
all purposes under this 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 6.03.  Other Remedies.  If an Event of Default occurs, has not been waived,
and is continuing with respect to any Series of Securities, the Trustee
may pursue any available remedy to collect the payment of principal of or
interest, if any, on the Securities of that Series or to enforce the
performance of any provision of the Securities of that Series or this
Indenture.


 


The
Trustee may maintain a proceeding even if it does not possess any of the
Securities of a Series or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default with respect to any Series of Securities shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default.  Except as otherwise provided
with respect to the replacement of lost, destroyed or wrongfully taken


 


25














 


Securities
of any Series in Section 2.08, no remedy is exclusive of any other
remedy and all available remedies are cumulative.


 


SECTION 6.04.  Waiver of Past Defaults.  The Holders of a majority in principal amount
of the Securities of any Series by notice to the Trustee may waive an
existing Default and its consequences with respect to such Series of
Securities except (a) a Default in the payment of the principal of,
premium, if any, or interest, if any, on a Security of that Series, (b) a
Default arising from the failure to redeem or purchase any Security of that Series when
required pursuant to this Indenture or (c) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of
each Holder affected.  When a Default is
waived, it is deemed cured and each of the Company, the Trustee and the Holders
of the Securities will be restored to their former positions and rights
hereunder, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.


 


SECTION 6.05.  Control by Majority.  The Holders of a majority in principal amount
of the outstanding Securities of any Series may, with respect to that Series of
Securities, direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of any other Holder of Securities of such Series not joining in
the direction (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not any such directions are unduly
prejudicial to such Holders), subject to Section 7.01, or that would
involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. 
Subject to Section 7.01, if an Event of Default has occurred and is
continuing with respect to a Series of Securities, the Trustee shall be
under no obligation to exercise any of the rights or powers under this
Indenture at the request or direction of any of the Holders of such Series of
Securities, unless such Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense which might
be incurred by it in compliance with such request or direction.


 


SECTION 6.06.  Limitation on Suits.  Except to enforce the right
to receive payment of principal of or interest, if any, on a Security of any Series when
due, no Holder of Securities of such Series may pursue any proceeding,
judicial or otherwise, or the appointment of a receiver or trustee, or any other
remedy with respect to this Indenture or the Securities of that Series, unless:


 


(1)           the Holder gives to the Trustee written notice stating
that an Event of Default is continuing with respect to that Series;


 


(2)           the Holders of at least 25% in aggregate principal amount
of the outstanding Securities of that Series in respect of which the Event
of Default has occurred make a written request to the Trustee to pursue the
remedy;


 


26

















 


(3)           such Holder or Holders of Securities of that Series offer
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense to be incurred in connection with such request;


 


(4)           the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; and


 


(5)           the Holders of a majority in principal amount of the
outstanding Securities of that affected Series do not give the Trustee a
direction inconsistent with the request during such 60-day period.


 


A
Holder of Securities of any Series may not use this Indenture to prejudice
the rights of another Holder of that Series or to obtain a preference or
priority over another Holder of Securities of that Series.


 


SECTION 6.07.  Rights of Holders to Receive Payment.  Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal of and
interest, if any, on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring 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 6.08.  Collection Suit by Trustee.  If an Event of Default specified in
Section 6.01(1) or 6.01(2) occurs and is continuing, upon the
demand of the Trustee the Company will pay to the Trustee for the benefit of
the Holders of any affected Series of Securities the whole principal
amount then due and owing, premium, if any, and interest remaining unpaid on
the Securities of that Series then outstanding, together with interest on
overdue principal and, to the extent lawful, overdue installments of interest,
in each case at the rate specified in the Securities, and such further amount
as is sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee hereunder.  If the Company fails to pay such amount upon
demand by the Trustee, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount then due
and owing (together with interest on any unpaid interest to the extent lawful)
and the amounts provided for in Section 7.07.


 


SECTION 6.09.  Trustee May File Proofs of Claim.  The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any


 


27

















 


other amounts due the Trustee under
Section 7.07.  Nothing in this
Indenture will be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


SECTION 6.10.  Priorities.  If the Trustee collects any money or property
pursuant to this Article 6 with respect to any Series of Securities,
it shall pay out the money or property in the following order:


 


FIRST:
to the payment of costs and expenses applicable to such Series in respect
of which monies have been collected, including reasonable compensation to the
Trustee and each predecessor Trustee and their respective agents and counsel
and of all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or
willful misconduct, and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 7.07;


 


SECOND:
in accordance with the subordination provisions, if any, of the Securities of
such Series;


 


THIRD:
in case the principal of the Securities of such Series in respect of which
monies 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;


 


FOURTH:
in case the principal of the Securities of such Series in respect of which
monies 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 such interest has been collected by
the Trustee) 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 monies
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, 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 Securities
of such Series over any other Securities of such Series, ratably to the
aggregate of such principal and accrued and unpaid interest or yield to
maturity; and


 


FIFTH:
to the Company or such other Person as a court of competent jurisdiction may
direct.


 


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


 


SECTION 6.11.  Restoration of Rights and Remedies. If
the Trustee or any Holder has instituted a proceeding to enforce any right or
remedy under this Indenture and the proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
the Holder, then, subject to any determination in the proceeding, the Company,
the Trustee and the Holders will be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Company, the Trustee and the Holders will continue as though no such proceeding
had been instituted.


 


SECTION 6.12.  Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, all parties to this Indenture agree,
and each Holder shall be deemed to have agreed, that a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith
of the claims or defenses made by the party litigant.  This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities of any Series.


 


SECTION 6.13.  Waiver of Stay or Extension Laws.  The Company (to the extent it may lawfully do
so) shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.


 


ARTICLE 7


 


Trustee


 


SECTION 7.01.  Duties of Trustee.


 


(a) If an Event of Default has occurred and is
continuing with respect to any Series of Securities, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent Person would exercise
or use under the circumstances in the conduct of such Person’s own affairs.


 


29

















 


(b)           Except during the continuance of an Event of Default with
respect to any Series of Securities:


 


(1)           the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect to the
Securities of that Series, as modified or supplemented by a resolution of the
Board of Directors, a supplemental indenture or an Officers’ Certificate, and
no implied covenants or obligations shall be read into this Indenture against
the Trustee; and


 


(2)           in the absence of willful misconduct on its part, the
Trustee may, with respect to the Securities of that Series, conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. 
However, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


 


(c)           The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct.


 


(d)           Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.


 


(e)           The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.


 


(f)            Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law and except for money held
in trust under Article 8.


 


(g)           No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.


 


(h)           Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the
TIA.


 


SECTION 7.02.  Rights of Trustee.  (a) In the absence of willful misconduct
on its part, the Trustee may conclusively rely on any 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


 


30

















 


hereof, the Trustee shall examine the document to
determine whether it conforms to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).


 


(b)           Before the Trustee acts or refrains from acting, it may
require an Officers’ Certificate or an Opinion of Counsel or both conforming to
Section 11.05.  The Trustee shall
not be liable for any action it takes or omits to take in good faith in
conclusive reliance on the Officers’ Certificate or Opinion of Counsel.


 


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


 


(d)           The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee’s conduct
does not constitute willful misconduct or negligence.


 


(e)           The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities, including any Opinion of Counsel, shall be full
and complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel, including any Opinion of
Counsel.


 


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


 


(g)           The Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions, or agreements on
the part of the Company, except as otherwise set forth herein, but the Trustee
may require of the Company full information and advice as to the performance of
the covenants, conditions and agreements contained herein.


 


(h)           The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and, with respect
to such permissive rights, the Trustee shall not be answerable for other than
its negligence or willful misconduct;


 


(i)            Except for a default under Sections 6.01(1) or
(2) hereof, the Trustee shall not be deemed to have notice or be charged
with knowledge of any Default or Event of Default with respect to the
Securities of any Series unless a Trust Officer has actual knowledge
thereof or shall have received from the Company or the Holders of not less than
25% in aggregate principal amount of the Securities then outstanding of such Series of
Securities written notice thereof at its address set forth in
Section 11.02 hereof, and such notice references such Securities and this
Indenture.  In the absence of any such
notice or actual knowledge, and except for a default under Sections 6.01(1) or
(2) hereof, the Trustee may conclusively assume that no Default or Event
of Default exists.


 


31

















 


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


 


(k)           The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder.


 


(l)            In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.


 


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


 


(n)           Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a board resolution.


 


(o)           The Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which certificate may be updated and delivered to the Trustee at any time by
the Company in its discretion.


 


SECTION 7.03.  Individual Rights of Trustee.  The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it
were not Trustee.  Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like
rights.  However, the Trustee must comply
with Sections 7.10 and 7.11 hereof and TIA Section 311.


 


SECTION 7.04.  Trustee’s Disclaimer.  The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or in any document issued in connection with the sale
of the Securities or in the Securities other than the Trustee’s certificate of
authentication.


 


32

















 


SECTION 7.05.  Notice of Defaults.  If a Default with respect to Securities of
any Series occurs and is continuing and is actually known to a Trust
Officer, the Trustee shall mail to each Holder of Securities of such Series notice
of the Default within the earlier of 90 days after it occurs or
30 days after it is actually known to a Trust Officer or written notice of
it is received by the Trustee, unless the Default has been cured.  Except in the case of a Default in the
payment of principal of or interest (if any) on any Security of any Series (including
payments pursuant to the redemption provisions of such Security), the Trustee
may withhold notice if and so long as it in good faith determines that
withholding notice is in the interests of the Holders of that Series of
Securities.  Notice to Holders under this
Section will be given in the manner and to the extent provided in TIA Section 313(c).


 


SECTION 7.06.  Reports by Trustee to Holders.  The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the TIA at the times and in the manner provided pursuant
thereto.  The interval between
transmission of reports to be transmitted at intervals shall be twelve months
or such shorter time required by the TIA. 
If the TIA does not specify the date on which a report is due, such
report shall be due on March 1 of each year following the first issuance
of Securities.


 


A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which Securities of any
series are listed, with the SEC and with the Company.  The Company will promptly notify the Trustee
in writing when the Securities of any series are listed on any stock exchange
and of any delisting thereof.


 


SECTION 7.07.  Compensation and Indemnity.  The Company shall pay to the Trustee from
time to time such compensation for its services as shall be agreed to in
writing from time to time by the Company and the Trustee.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services.  Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.  The Company shall indemnify the Trustee, its
agents, representatives, officers, directors, employees and attorneys against
any and all loss, liability, damage, claim (whether asserted by the Company, a
Holder or any other Person) or expense (including reasonable compensation and expenses
and disbursements of the Trustee’s counsel) incurred by it in connection with
the administration of this trust and the performance of its duties or in
connection with the exercise or performance of any of its rights or powers
hereunder.  The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the
Trustee shall provide reasonable cooperation in such defense.  The Trustee may have separate counsel of its
selection and the Company shall pay the fees and expenses of such counsel
reasonably acceptable to the Company, provided, however, that the
Company shall not be required to pay such fees and expenses if the Company


 


33

















 


assumes such defense unless there is a conflict of
interest between the Company and the Trustee in connection with such defense as
determined by Trustee in consultation with counsel.  Notwithstanding the foregoing, the Company
need not reimburse any expense or indemnify against any loss, liability,
damage, claim or expense incurred by the Trustee through the Trustee’s own
willful misconduct, negligence or bad faith.


 


To
secure the Company’s payment obligations in this Section, the Trustee shall
have a lien prior to the Securities on all money or property held or collected
by the Trustee, in its capacity as Trustee, other than money or property held
in trust to pay principal of and interest, if any, on particular Securities.


 


The
Company’s payment obligations pursuant to this Section shall survive the
resignation or removal of the Trustee and the discharge of this Indenture.  When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(5) or (6) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.


 


SECTION 7.08.  Replacement of Trustee.  The Trustee may resign at any time with
respect to any Series of Securities by so notifying the Company.  The Holders of a majority in principal amount
of the outstanding Securities of any Series may remove the Trustee by so
notifying the Trustee and the Company in writing.  The Company shall remove the Trustee if:


 


(1)           the Trustee fails to comply with Section 7.10;


 


(2)           the Trustee is adjudged bankrupt or insolvent;


 


(3)           a receiver or other public officer takes charge of the
Trustee or its property; or


 


(4)           the Trustee otherwise becomes incapable of acting.


 


If
the Trustee has been removed by the Holders, Holders of a majority in principal
amount of the outstanding Securities of all Series for which the Trustee
was acting as Trustee (voting as a single class) may appoint a successor Trustee
for all such Series with the consent of the Company. Otherwise, if the
Trustee resigns or is removed, or if a vacancy exists in the office of Trustee
for any reason, the Company will promptly appoint a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. 
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. 
The successor Trustee with respect to any Series of Securities
shall mail a notice of its succession to Holders of Securities of that Series,
and include in the notice its name and address of its Corporate Trust
Office.  The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.


 


34

















 


If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of 10% in principal amount of the Securities of that Series may petition,
at the expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.


 


If
the Trustee fails to comply with Section 7.10, unless the Trustee’s duty
to resign is stayed as provided in TIA Section 310(b), any Holder of
Securities of any Series may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee with
respect to that Series of Securities.


 


Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.


 


The
Trustee agrees to give the notices provided for in, and otherwise comply with
TIA Section 310(b).


 


SECTION 7.09.  Successor Trustee by Merger.  If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall,
if such resulting, surviving or transferee corporation or banking association
is otherwise eligible under this Indenture, be the successor Trustee.


 


In
case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities 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 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 to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.


 


SECTION 7.10.  Eligibility; Disqualification.  The Trustee shall at all times satisfy the
requirements of TIA Section 310(a). 
The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.  The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any Series of
Securities and any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are
met.


 


SECTION 7.11.  Preferential Collection of Claims Against
Company.  The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed


 


35














 


in TIA Section 311(b).  A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to
the extent indicated.


 


ARTICLE 8


 


Discharge of Indenture;
Defeasance


 


SECTION 8.01.  Discharge of Liability on Securities;
Defeasance.  (a) Unless
otherwise provided for in a resolution of the Board of Directors, a
supplemental indenture or an Officers’ Certificate, when (1) the Company
delivers to the Trustee all outstanding Securities of a Series (other than
(i) Securities replaced pursuant to Section 2.08 or (ii) Securities
of such Series that are paid pursuant to Section 4.01 or (iii) Securities
of such Series for whose payment money or U.S. Government Obligations have
been held in trust and then repaid to the Company pursuant to this Article 8)
for cancellation or (2) all outstanding Securities of a Series have
become due and payable, whether at maturity or on a redemption date as a result
of the mailing of a notice of redemption pursuant to Article 3 hereof and,
in the case of clause (2), the Company irrevocably deposits with the Trustee
funds or U.S. Government Obligations sufficient to pay at maturity or upon
redemption all outstanding Securities of such Series, including premium, if
any, and interest, if any, thereon to maturity or such redemption date (other
than Securities replaced pursuant to Section 2.08), and if in either case
the Company pays all other sums payable under this Indenture by the Company,
then this Indenture with respect to such Series shall, subject to
Section 8.01(c), cease to be of further effect with respect to such Series of
Securities.  Upon satisfaction of the
above conditions, the Trustee shall acknowledge in writing satisfaction and
discharge of this Indenture with respect to such Series of Securities.


 


(b)                                 Unless otherwise provided
for a particular Series of Securities by a resolution of the Board of
Directors, a supplemental indenture or an Officers’ Certificate, subject to
Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all
its obligations under the Securities of a Series and this Indenture with
respect to such Series of Securities (“legal defeasance option”) or
(2) with respect to a Series of Securities, its obligations under Section 4.02
and under covenants contained in any resolution of the Board of Directors, a
supplemental indenture or an Officers’ Certificate, if any, and the operation
of Sections 6.01(5) and 6.01(6) (but, in the case of
Sections 6.01(5) and 6.01(6), with respect only to Significant
Subsidiaries) (“covenant defeasance option”). 
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option.


 


If
the Company exercises its legal defeasance option with respect to a Series,
payment of the Securities of such Series may not be accelerated because of
an Event of Default with respect to such Series.  If the Company exercises its covenant
defeasance option with respect to any Series of Securities, payment of the
Securities of such Series may not be accelerated because of an Event of
Default with respect to such Series specified in Section 6.01(4) (with
respect only to the Company’s obligations under Section 4.02) and
Sections 6.01(5) and 6.01(6) (in the case of Section 6.01(5) and
6.01(6), with respect only to Significant Subsidiaries).


 


36

















 


Upon
satisfaction of the conditions set forth herein and upon written request of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel
complying with Section 11.04, the Trustee shall acknowledge in writing the
discharge the Company’s obligations under the Securities of such Series and
this Indenture other than the surviving obligations.


 


(c)                                  After satisfying the
conditions in clause (a), only the Company’s obligation under Sections 7.07,
8.04 and 8.05 will survive.  After
satisfying the conditions in clause (b), only the Company’s obligations in
Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08 and in this
Article 8 shall survive with respect to any Series of Securities
until the Securities of such Series have been paid in full.  Thereafter, the Company’s obligations in
Section 7.07, 8.04 and 8.05 shall survive.


 


SECTION 8.02.  Conditions to Defeasance.  Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, the Company may exercise its legal defeasance
option or its covenant defeasance option with respect to any Series of
Securities only if:


 


(1)                                  the Company
irrevocably deposits in trust with the Trustee money in U.S. dollars in an
amount sufficient or U.S. Government Obligations, the principal of and interest
on which shall be sufficient, or a combination thereof, sufficient to pay the
principal of and interest, if any, in respect of the Securities of such Series to
redemption or maturity, as the case may be;


 


(2)                                  the Company
delivers to the Trustee a certificate from a nationally recognized investment
bank, appraisal firm or firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any deposited
money without investment will provide cash at such times and in such amounts as
will be sufficient to pay principal and interest, if any, when due on all the
Securities of that Series to maturity or redemption, as the case may be;


 


(3)                                  91 days
pass after the deposit is made and during the 91-day period no Default
specified in Sections 6.01(5) or (6) with respect to the Company
occurs which is continuing at the end of the period;


 


(4)                                  the deposit
does not constitute a default under any other material agreement binding on the
Company;


 


(5)                                  the Company
delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;


 


(6)                                  in the case of
the legal defeasance option, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or
(B) since the date of this Indenture there has been a change in the
applicable Federal income tax law to the effect that the Holders of Securities
of


 


37

















 


such Series will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred; and


 


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


 


Before
or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities of such Series at a future date
in accordance with Article 3.


 


Prior
to the end of the 91-day period, none of the Company’s obligations under this
Indenture will be discharged. Thereafter, the Trustee upon written request will
acknowledge in writing the discharge of the Company’s obligations under the
Securities of such Series and this Indenture (as it relates to the
Securities of such Series) except for the surviving obligations specified
above.


 


SECTION 8.03.  Application of Trust Money.  Subject to Section 8.04, the Trustee
shall hold in trust money or U.S. Government Obligations deposited with it in
respect of a Series of Securities pursuant to Section 8.01 or
8.02.  It shall apply the deposited money
and the money from U.S. Government Obligations, as the case may be, through the
Paying Agent and in accordance with this Indenture to the payment of principal
of, premium, if any, and interest, if any, on the Securities of such Series.


 


SECTION 8.04.  Repayment to Company.  The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by
them at any time.


 


Subject
to any applicable abandoned property law, the Trustee and the Paying Agent
shall pay to the Company upon request any money or U.S. Government Obligations
held by them for the payment of principal or interest that remains unclaimed
for two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors, unless applicable law designates
another Person.


 


SECTION 8.05.  Indemnity for Government Obligations.  The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations other than any such tax, fee or other charge
which by law is for the account of the Holders of outstanding Securities of any
Series.


 


38

















 


SECTION 8.06.  Reinstatement.  If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations held in trust in accordance with
Section 8.01 or 8.02 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company’s obligations under this
Indenture with respect to such applicable Series of Securities shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article 8 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article 8; provided, however, that, if the Company has made
any payment of interest on, premium, if any, or principal of any Securities of
a Series because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent in trust.


 


ARTICLE 9


 


Supplemental Indentures


 


SECTION 9.01.  Without Consent of Holders.  The Company and the Trustee may enter into
one or more supplemental indentures hereto without notice to or consent of any
Holder:


 


(1)                                  to cure any
ambiguity, omission, defect or inconsistency;


 


(2)                                  to provide for
the assumption by a successor corporation of the obligations of the Company
under this Indenture in compliance with Article 5;


 


(3)                                  to provide for
uncertificated Securities in addition to or in place of certificated
Securities; provided, however, that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the
Code or in a manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;


 


(4)                                  to add
Guarantees with respect to the Securities of such Series or to confirm and
evidence the release, termination or discharge of any such Guarantee when such
release, termination or discharge is permitted under this Indenture;


 


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


 


(6)                                  to make any
change that does not adversely affect the rights of any Holder in any material
respect, subject to the provisions of this Indenture;


 


(7)                                  to comply with
any requirement of the SEC in connection with qualifying, or maintaining the
qualification of, this Indenture under the TIA;


 


39

















 


(8)                                  to make any
amendment to the provisions of this Indenture relating to form, authentication,
transfer and legending of such Series of Securities; provided, however,
that (A) compliance with this Indenture as so amended would not result in
such Securities being transferred in violation of the Securities Act or any
other applicable securities law and (B) such amendment does not materially
affect the rights of Holders to transfer such Securities;


 


(9)                                  to convey,
transfer, assign, mortgage or pledge as security for the Securities of such Series any
property or assets;


 


(10)                            in the case of
subordinated Securities, to make any change in the provisions of this Indenture
relating to subordination that would limit or terminate the benefits available
to any holder of senior Indebtedness under such provisions (but only if each
such holder of senior Indebtedness consents to such change);


 


(11)                            to provide for
the conversion rights of Holders of Securities in certain events such as
consolidation, merger, sale of substantially all of the Company or similar
transaction;


 


(12)                            to reduce the conversion
price, if applicable, of any Series of Securities;


 


(13)                            to add any
additional Events of Default (and, if such Events of Default are to be
applicable to less than all Series of Securities, stating that such Events
of Default are expressly being included solely to be applicable to such
Series); provided, however, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular grace period
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in principal amount of the Series of
Securities to which such additional Events of Default apply to waive such
default;


 


(14)                            to change or
eliminate any restrictions on the payment of principal (or premium, if any) of
Securities, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any Series in any material
respect;


 


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


 


(16)                            to supplement
any of the provisions of this Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge of any Series of
Securities pursuant to Sections 8.01 or 8.02; provided that any such 


 


40

















 


action shall not adversely affect the interests of
the Holders of Securities of such Series or any other Series of
Securities in any material respect;


 


(17)                            to change or
eliminate any of the provisions of this Indenture with respect to one or more Series of
Securities, so long as any such change or elimination not otherwise permitted
under this Indenture shall (A) neither apply to any Security of any Series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor modify the rights of the Holders of any such
Security with respect to the benefit of such provision or (B) become
effective only when there is no such Security outstanding;


 


(18)                            to establish
the initial form, authentication, transfer, legending or terms of Securities
and coupons of any Series pursuant to Article 2; and


 


(19)                            to make any
other changes that would provide any additional rights or benefits to Holders
of Securities that do not adversely affect in any material respect the legal
rights under this Indenture of any such Holder.


 


After
a supplemental indenture under this Section becomes effective, the Company
shall mail to Holders of each Series of Securities to which such
supplemental indenture applies a notice briefly describing such supplemental
indenture.  The failure to give such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of a supplemental indenture under this Section.


 


SECTION 9.02.  With Consent of Holders.  (a) The Company and the Trustee may
enter into one or more supplemental indentures hereto with the written consent
of the Holders of at least a majority in principal amount of the Securities of
such Series then outstanding, voting as a single class (including consents
obtained in connection with a tender offer or exchange for Securities of such
Series).  Any existing Default or
compliance with any provisions of this Indenture with respect to any Series of
Securities may be waived with the consent of the Holders of at least a majority
in principal amount of the Securities of that Series then outstanding
voting as a single class, subject to the restrictions of Section 6.04 and
this Section 9.02.  Notwithstanding
the foregoing, without the consent of each Holder affected thereby, a
supplemental indenture or waiver may not:


 


(1)                                  reduce the
amount of Securities of any Series whose Holders must consent to a
supplemental indenture;


 


(2)                                  reduce the rate
of or extend the time for payment of interest on any Security;


 


(3)                                  reduce the
principal of or extend the Stated Maturity of any Security;


 


(4)                                  reduce the premium,
if any, payable upon the redemption of any Security or change the time at which
such Security may be redeemed;


 


41

















 


(5)                                  make any
Security payable in money or securities other than that stated in such Security;


 


(6)                                  impair the
right of any Holder to receive payment of principal of and interest on such
Holder’s Securities on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such Holder’s Securities;


 


(7)                                  in the case of
any subordinated Securities, or coupons appertaining thereto, make any change
in the provisions of this Indenture relating to subordination that adversely
affects the rights of any Holder under such provisions; or


 


(8)                                  make any change
in Section 6.04 or the second sentence of this Section 9.02, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each outstanding Securities affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the requirements
of Section 9.01(15).


 


(b)                                 It shall not be necessary
for the consent of the Holders of any Series to which a supplemental
indenture applies under this Section to approve the particular form of
such proposed supplemental indenture, but it shall be sufficient if such
consent approves the substance thereof.


 


After
an amendment, modification or waiver under this Section becomes effective,
the Company shall mail to Holders of any Series to which such amendment,
modification or waiver applies a notice briefly describing such amendment,
modification or waiver.  The failure to
give such notice to all such Holders, or any defect therein, shall not impair
or affect the validity of an amendment, modification, supplemental indenture or
waiver under this Section.


 


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


 


SECTION 9.03.  Compliance with Trust Indenture Act.  Every supplemental indenture executed pursuant
to this Article shall comply with the TIA as then in effect.


 


SECTION 9.04.  Revocation and Effect of Consents and
Waivers.  A consent to a supplemental
indenture or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences
the same debt as the consenting Holder’s Security, even if notation of the
consent or waiver


 


42

















 


is not made on the Security.  However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
supplemental indenture or waiver becomes effective.  After a supplemental indenture or waiver
becomes effective, it shall bind every Holder. 
A supplemental indenture or waiver becomes effective upon the execution
of such supplemental indenture or waiver by the Trustee.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other
action described above or required or permitted to be taken pursuant to this
Indenture.  If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. 
No such consent shall be valid or effective for more than 120 days
after such record date.


 


SECTION 9.05.  Notation on or Exchange of Securities.  If an amendment changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee.  The Trustee may place an
appropriate notation on the Security regarding the changed terms and return it
to the Holder.  Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.  Failure to make the
appropriate notation or to issue a new Security shall not affect the validity
of such amendment.


 


SECTION 9.06.  Trustee To Sign Supplemental Indentures.  The Trustee shall sign any supplemental
indenture authorized pursuant to this Article 9 if the supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If it does,
the Trustee may but need not sign it.  In
signing such supplemental indenture the Trustee shall receive indemnity
reasonably satisfactory to it and shall receive, and (subject to Section 7.01)
shall be fully protected in conclusively relying upon, an Officers’ Certificate
and an Opinion of Counsel stating that such supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture
is the legal, valid and binding obligation of the Company, enforceable against
it in accordance with its terms.


 


SECTION 9.07.  Payment for Consent.  Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities of any Series unless such
consideration is offered to be paid to all Holders of such Series that so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.


 


43

















 


ARTICLE 10


 


Subordination of Securities


 


SECTION 10.01.  Applicability of Article; Agreement to
Subordinate. In the event a Series of Securities is designated as
subordinated pursuant to Section 2.01 (“Subordinated Securities”) and
except as otherwise provided in a supplemental indenture or pursuant to Section 2.01,
the Company, for itself, its successors and assigns, covenants and agrees, and
each Holder of Subordinated Securities by such Holder’s acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and premium,
if any) and interest, if any, on each and all of the Subordinated Securities is
hereby expressly subordinated, to the extent and in the manner set forth in
this Article, in right of payment to the prior payment in full of all Senior
Indebtedness.


 


SECTION 10.02.  Rights of Holders of Subordinated
Indebtedness. (a) In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings, relative to the Company or to its creditors, as such, or to its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company, whether or not involving
insolvency or bankruptcy, and in the event of any execution sale, then the
holders of Senior Indebtedness shall be entitled to receive payment in full of
the principal thereof and premium, if any, and interest due thereon (including
without limitation, except to the extent, if any prohibited by mandatory
provisions of law, post petition interest in any such proceedings) in money
before the Holders of Subordinated Securities are entitled to receive any
payment on account of the principal of, premium, if any, or interest on the
indebtedness evidenced by the Subordinated Securities, and to that end the holders
of Senior Indebtedness shall be entitled to receive for application in payment
thereof any payment or distribution of any kind or character, whether in cash
or property or securities, which may be payable or deliverable in connection
with any such proceedings or sale in respect of the principal of, premium, if
any, or interest on the Subordinated Securities other than securities of the
Company as reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this Article 10
with respect to the Subordinated Securities, to the payment of all indebtedness
of the nature of Senior Indebtedness, provided that the rights of the holders
of the Senior Indebtedness are not altered by such reorganization or
readjustment;


 


(b)                                 In the event and during the
continuation of any default in payment of any Senior Indebtedness or if any
event of default, as therein defined, shall exist and all grace periods with
respect thereto shall have expired, under any Senior Indebtedness or any
agreement pursuant to which any Senior Indebtedness is issued, no payment of
the principal of, premium, if any, or interest on the Subordinated Securities
shall be made and the Company covenants that it will, upon ascertaining any
such default or event of default, provide written notice to the Trustee of such
default or event of default, provided that payment on the Subordinated
Securities may and shall be resumed, in the case of a notice relating to a
payment default on such Senior Indebtedness, upon the date on which it is cured
or waived pursuant to the terms of such Senior Indebtedness, and, in the case


 


44

















 


of a notice relating to a nonpayment default, the
earlier of the date on which it is cured or waived pursuant to the terms of
such Senior Indebtedness or 179 days after the date on which such notice is
received by the Trustee, unless the maturity of the relevant Senior
Indebtedness of the Company has been accelerated;


 


(c)                                  In the event that the
Subordinated Securities of any Series are declared due and payable before
their expressed maturity because of the occurrence of an Event of Default
(under circumstances when the provisions of subsection (a) of this Section 10.02
shall not be applicable), the holders of all Senior Indebtedness shall be
entitled to receive payment in full in money of such Senior Indebtedness before
such Holders of Subordinated Securities are entitled to receive any payment on
account of the principal of or interest on the Subordinated Securities; and


 


(d)                                 No holder of Senior
Indebtedness shall be prejudiced in such holder’s right to enforce
subordination of the Subordinated Securities by any act or failure to act on
the part of the Company.


 


SECTION 10.03.  Payments and Distributions.
In the event that, notwithstanding the provisions of Section 10.02, any
payment or distribution of assets of the Company of any kind or character, whether
in cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Article 10 with
respect to the Subordinated Securities, to the payment of all indebtedness of
the nature of Senior Indebtedness, provided that the rights of the holders of
the Senior Indebtedness are not altered by such reorganization or readjustment)
shall be received by the Holders of Subordinated Securities or by the Trustee
for their benefit in connection with any proceedings or sale referred to in
subsection (a) of Section 10.02 before all Senior Indebtedness is
paid in full in money, such payment or distribution shall be paid over to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company,
if any, otherwise such payment or distribution shall be paid over to the
holders of such Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full in money, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.


 


From
and after the payment in full in money of all Senior Indebtedness, the Holders
of Subordinated Securities (together with the holders of any other indebtedness
of the Company which is subordinate in right of payment to the payment in full
of all Senior Indebtedness, which is not subordinate in right of payment to the
Subordinated Securities and which by its terms grants such right of subrogation
to the holder thereof) shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of assets or
securities of the Company applicable to the Senior


 


45














 


Indebtedness
until the Subordinated Securities shall be paid in full, and, for the purposes
of such subrogation, no such payments or distributions to the holders of Senior
Indebtedness of assets or securities, which otherwise would have been payable
or distributable to Holders of Subordinated Securities, shall, as between the
Company, its creditors other than the holders of Senior Indebtedness and the
Holders, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this Article 10
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of the Senior Indebtedness, on
the other hand, and nothing contained in this Article 10 or elsewhere in
this Indenture or in the Subordinated Securities is intended to or shall impair
as between the Company, its creditors other than the holders of Senior
Indebtedness and the Holders of Subordinated Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of
Subordinated Securities the principal of and interest on the Subordinated
Securities as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of Subordinated
Securities and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Subordinated Security from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture subject to the
rights of the holders of Senior Indebtedness, under Section 10.02, to
receive cash, property or securities of the Company otherwise payable or
deliverable to the Holders of the Subordinated Securities.


 


Upon any distribution or payment in connection with any proceedings or
sale referred to in subsection (a) of Section 10.02, the Trustee,
subject as between the Trustee and the Holders of Subordinated Securities to
the provisions of Section 7.02 hereof, shall be entitled to conclusively
rely upon a certificate of the liquidating trustee or agent or other person
making any distribution or payment to the Trustee, the amount of such Senior
Indebtedness or the amount payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this Section 10.03,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such person, as to the extent to which such person is entitled to participate
in such payment or distribution, and as to other facts pertinent to the rights
of such person under this Section 10.03, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.


 


The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such holders
if it shall in good faith pay over or distribute to Holders of Subordinated
Securities or the Company or any other person moneys or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of Article 10
of this Indenture or otherwise. With respect to holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 10 and no
implied


 


46

















 


covenants
or obligations with respect to holders of Senior Indebtedness shall be read
into this Indenture against the Trustee.


 


SECTION 10.04.  Payments by the
Company. Nothing contained in this Article 10 or elsewhere in this
Indenture, or in any of the Subordinated Securities, shall prevent at any time,
(a) the Company from making payments at any time of principal of, premium,
if any, or interest on the Subordinated Securities, except under the conditions
described in Section 10.02 or during the pendency of any proceedings or
sale therein referred to, provided, however, that payments of principal of,
premium, if any, or interest on the Subordinated Securities shall only be made
by the Company within three business days of the due dates for such payments or
(b) the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of, premium, if any,
or interest on the Subordinated Securities, if at the time of such deposit the
Trustee did not have written notice in accordance with Section 10.06 of
any event prohibiting the making of such deposit by the Company or if in the
event of redemption, the Trustee did not have such written notice prior to the
time that the notice of redemption pursuant to Section 3.01 was given
(which notice of redemption shall in no event be given more than 60 days prior
to the date fixed for redemption).


 


SECTION 10.05.  Appointment of
the Trustee by Holders. Each Holder by such Holder’s acceptance of a Subordinated
Security authorizes and directs the Trustee on such Holder’s behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the
unpaid balance of such Holder’s Subordinated Securities in the form required in
said proceedings and cause said claim to be approved.


 


SECTION 10.06.  Notice to Trustee.  The Company shall give prompt written notice
to the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Subordinated Securities.  Failure to give such notice shall not affect
the subordination of the Securities to Senior Indebtedness.  Notwithstanding the provisions of this Article 10
or any other provisions of this Indenture, the Trustee shall not be charged
with the knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee, unless and until the
Trustee shall have received written notice thereof from the Company or from the
holder of, or the representative of any class of, Senior Indebtedness, together
with proof satisfactory to the Trustee of such holding of Senior Indebtedness
or of the authority of such representative and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if at least three Business Days prior to the date upon which by
the terms hereof any such monies may become payable for any purpose (including,
without limitation, the payment of either the cash amount payable at maturity
or interest on any Subordinated Security) a responsible


 


47

















 


officer of the Trustee shall not have received with
respect to such monies the notice provided for in this Section 10.06,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary, which may be received by it on or after such three
Business Days prior to such date.


 


SECTION 10.07.  Rights of Trustee.
The Trustee shall be entitled to all the rights set forth in this Article 10
with respect to any Senior Indebtedness which may at any time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any Authenticating Agent of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims
of, or payments to, the Trustee or pursuant to Section 7.07.


 


SECTION 10.08.  Paying Agent.
In case at any time any Paying Agent other than the Trustee shall be appointed
by the Company and be then acting hereunder, the term “Trustee” as used in this
Article 10 shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in
this Article 10 in place of the Trustee.


 


ARTICLE 11


 


Miscellaneous


 


SECTION 11.01.  Trust Indenture Act Controls.  If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.


 


SECTION 11.02.  Notices.  Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:


 


if to the Company:


 


Thompson Creek Metals Company Inc.


26 West Dry Creek Circle, Suite 810


Littleton, CO 80120


fax: 303-762-3511


Attention: Wendy Cassity, Esq.


 


if to the Trustee:


 


Wells Fargo Bank, National Association


Corporate Trust Services, MAC N9311-110


650 Marquette Avenue South


Minneapolis, MN 55479


fax: 612-667-9825


Attention Thompson Creek Metals Account Manager


 


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The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.


 


Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.


 


Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.


 


SECTION 11.03.  Communication by Holders with Other
Holders.  Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities of any Series.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).


 


SECTION 11.04.  Certificate and Opinion as to Conditions
Precedent.  Upon any request or
application by the Company to the Trustee to take or refrain from taking any
action under this Indenture, the Company shall furnish to the Trustee, to the
extent reasonably requested by the Trustee:


 


(1)                                  an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and


 


(2)                                  an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with (provided, however, that such counsel may rely as
to matters of fact on Officers’ Certificates).


 


SECTION 11.05.  Statements Required in Certificate or
Opinion.  Each certificate (other
than a certificate delivered pursuant to Section 4.03) or opinion with
respect to compliance with a covenant or condition provided for in this
Indenture shall include:


 


(1)                                  a statement
that the individual making such certificate or opinion has read such covenant
or condition;


 


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


 


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


 


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(4)                                  a statement as
to whether or not, in the opinion of such individual, such covenant or
condition has been complied with.


 


SECTION 11.06.  When Securities Disregarded.  In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in conclusively relying on any such direction, waiver or consent,
only Securities which a Trust Officer actually knows are so owned shall be so
disregarded.  Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in any
such determination.


 


SECTION 11.07.  Rules by Trustee, Paying Agent and
Registrar.  The Trustee may make
reasonable rules for action by or a meeting of Holders.  The Registrar and the Paying Agent may make
reasonable rules for their functions.


 


SECTION 11.08.  Legal Holidays.  If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.  If a regular record date is a Legal Holiday,
the record date shall not be affected.


 


SECTION 11.09.  Governing Law; Waiver of Jury Trial.  This Indenture and the Securities shall be
governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable principles of conflicts of law to the
extent that the application of the law of another jurisdiction would be
required thereby.  EACH OF THE COMPANY
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION
CONTEMPLATED HEREBY.


 


SECTION 11.10.  No Recourse Against Others.  A director, officer, employee or shareholder,
as such, of the Company shall not have any liability for any obligations of the
Company under the Securities of any Series or this Indenture, or for any
claim based on, in respect of or by reason of such obligations or their
creation.  By accepting a Security, each
Holder shall waive and release all such liability.  The waiver and release shall be part of the
consideration for the issue of the Securities.


 


SECTION 11.11.  Successors.  All agreements of the Company in this
Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this
Indenture shall bind its successors.


 


SECTION 11.12.  No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture
or loan or debt agreement of the Company or any Subsidiary of the Company, and
no such indenture or loan or debt agreement may be used to interpret this
Indenture.


 


50

















 


SECTION 11.13.  Separability. In case any provision in
this Indenture or in the Securities is invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.


 


SECTION 11.14.  Multiple Originals.  The parties may sign any number of copies of
this Indenture.  Each signed copy shall
be an original, but all of them together represent the same agreement.  One signed copy is enough to prove this
Indenture.  The exchange of copies of
this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all
purposes.


 


SECTION 11.15.  Table of Contents; Headings.  The table of contents, cross-reference sheet
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.


 


SECTION 11.16.  U.S.A. Patriot Act.  The parties hereto acknowledge that in
accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like
all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or
opens an account with the Trustee.  The
parties to this Indenture agree that they will provide the Trustee with such information
as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. Patriot Act.


 


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


 


	
   

  	
  THOMPSON
  CREEK METALS COMPANY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  WELLS
  FARGO BANK, National Association, as

  
	
   

  	
  Trustee,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:  Lynn M. Steiner

  
	
   

  	
   

  	
  Title:  Vice President