EXHIBIT 4.4


 


[Form of
Senior or Subordinated Indenture]


 


MOSYS, INC.


 


TO


 


 


[SENIOR/SUBORDINATED] INDENTURE


 


DATED AS OF         


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
  ARTICLE ONE

  	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
  Section 1.01.

  	
          Definitions

  	
  1

  
	
  Section 1.02.

  	
          Compliance
  Certificates and Opinions

  	
  7

  
	
  Section 1.03.

  	
          Form of
  Documents Delivered to Trustee

  	
  7

  
	
  Section 1.04.

  	
          Acts
  of Holders; Record Dates

  	
  8

  
	
  Section 1.05.

  	
          Notices, Etc.,
  to Trustee and Company

  	
  9

  
	
  Section 1.06.

  	
          Notice
  to Holders; Waiver

  	
  9

  
	
  Section 1.07.

  	
          Conflict
  with Trust Indenture Act

  	
  9

  
	
  Section 1.08.

  	
          Effect
  of Headings and Table of Contents

  	
  9

  
	
  Section 1.09.

  	
          Successors
  and Assigns

  	
  9

  
	
  Section 1.10.

  	
          Separability
  Clause

  	
  10

  
	
  Section 1.11.

  	
          Benefits
  of Indenture

  	
  10

  
	
  Section 1.12.

  	
          Governing
  Law

  	
  10

  
	
  Section 1.13.

  	
          Legal
  Holidays

  	
  10

  
	
  ARTICLE TWO

  	
  SECURITY
  FORMS

  	
  10

  
	
  Section 2.01.

  	
          Forms
  Generally

  	
  10

  
	
  Section 2.02.

  	
          Form of
  Face of Security

  	
  10

  
	
  Section 2.03.

  	
          Form of
  Reverse of Security

  	
  11

  
	
  Section 2.04.

  	
          Form of
  Legend for Global Securities

  	
  14

  
	
  Section 2.05.

  	
          Form of
  Trustee’s Certificate of Authentication

  	
  14

  
	
  ARTICLE THREE

  	
  THE
  SECURITIES

  	
  14

  
	
  Section 3.01.

  	
          Amount
  Unlimited; Issuable in Series

  	
  14

  
	
  Section 3.02.

  	
          Denominations

  	
  16

  
	
  Section 3.03.

  	
          Execution,
  Authentication, Delivery and Dating

  	
  16

  
	
  Section 3.04.

  	
          Temporary
  Securities

  	
  17

  
	
  Section 3.05.

  	
          Registration,
  Registration of Transfer and Exchange

  	
  17

  
	
  Section 3.06.

  	
          Mutilated,
  Destroyed, Lost and Stolen Securities

  	
  18

  
	
  Section 3.07.

  	
          Payment
  of Interest; Interest Rights Preserved

  	
  18

  
	
  Section 3.08.

  	
          Persons
  Deemed Owners

  	
  19

  
	
  Section 3.09.

  	
          Cancellation

  	
  19

  
	
  Section 3.10.

  	
          Computation
  of Interest

  	
  19

  
	
  ARTICLE FOUR

  	
  SATISFACTION
  AND DISCHARGE

  	
  20

  
	
  Section 4.01.

  	
          Satisfaction
  and Discharge of Indenture

  	
  20

  
	
  Section 4.02.

  	
          Application
  of Trust Money

  	
  20

  
	
  ARTICLE FIVE

  	
  REMEDIES

  	
  20

  
	
  Section 5.01.

  	
          Events
  of Default

  	
  20

  
	
  Section 5.02.

  	
          Acceleration
  of Maturity; Rescission and Annulment

  	
  21

  
	
  Section 5.03.

  	
          Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  22

  
	
  Section 5.04.

  	
          Trustee
  May File Proofs of Claim

  	
  22

  
	
  Section 5.05.

  	
          Trustee
  May Enforce Claims Without Possession of Securities

  	
  22

  
	
  Section 5.06.

  	
          Application
  of Money Collected

  	
  22

  
	
  Section 5.07.

  	
          Limitation
  on Suits

  	
  23

  
	
  Section 5.08.

  	
          Unconditional
  Right of Holders to Receive Principal, Premium and Interest

  	
  23

  
	
  Section 5.09.

  	
          Restoration
  of Rights and Remedies

  	
  23

  
	
  Section 5.10.

  	
          Rights
  and Remedies Cumulative

  	
  23

  
	
  Section 5.11.

  	
          Delay
  or Omission Not Waiver

  	
  24

  
	
  Section 5.12.

  	
          Control
  by Holders

  	
  24

  
	
  Section 5.13.

  	
          Waiver
  of Past Defaults

  	
  24

  
	
  Section 5.14.

  	
          Undertaking
  for Costs

  	
  24

  
	
  Section 5.15.

  	
          Waiver
  of Usury, Stay or Extension Laws

  	
  24

  
	
  ARTICLE SIX

  	
  THE
  TRUSTEE

  	
  24

  



 


i

















 


TABLE OF CONTENTS


Cont’d


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
          Certain
  Duties and Responsibilities

  	
  24

  
	
  Section 6.02.

  	
          Notice
  of Defaults

  	
  25

  
	
  Section 6.03.

  	
          Certain
  Rights of Trustee

  	
  25

  
	
  Section 6.04.

  	
          Not
  Responsible for Recitals or Issuance of Securities

  	
  25

  
	
  Section 6.05.

  	
          May Hold
  Securities

  	
  25

  
	
  Section 6.06.

  	
          Money
  Held in Trust

  	
  26

  
	
  Section 6.07.

  	
          Compensation
  and Reimbursement

  	
  26

  
	
  Section 6.08.

  	
          Conflicting
  Interests

  	
  26

  
	
  Section 6.09.

  	
          Corporate
  Trustee Required; Eligibility

  	
  26

  
	
  Section 6.10.

  	
          Resignation
  and Removal; Appointment of Successor

  	
  26

  
	
  Section 6.11.

  	
          Acceptance
  of Appointment by Successor

  	
  27

  
	
  Section 6.12.

  	
          Merger,
  Conversion, Consolidation or Succession to Business

  	
  28

  
	
  Section 6.13.

  	
          Preferential
  Collection of Claims Against Company

  	
  28

  
	
  Section 6.14.

  	
          Appointment
  of Authenticating Agent

  	
  28

  
	
  ARTICLE SEVEN

  	
  HOLDERS’
  LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
  29

  
	
  Section 7.01.

  	
          Company
  to Furnish Trustee Names and Addresses of Holders

  	
  29

  
	
  Section 7.02.

  	
          Preservation
  of Information; Communications to Holders

  	
  29

  
	
  Section 7.03.

  	
          Reports
  by Trustee

  	
  30

  
	
  Section 7.04.

  	
          Reports
  by Company

  	
  30

  
	
  ARTICLE EIGHT

  	
  CONSOLIDATION,
  MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  30

  
	
  Section 8.01.

  	
          Company
  May Consolidate, Etc., Only on Certain Terms

  	
  30

  
	
  Section 8.02.

  	
          Successor
  Substituted

  	
  30

  
	
  ARTICLE NINE

  	
  SUPPLEMENTAL
  INDENTURES

  	
  31

  
	
  Section 9.01.

  	
          Supplemental
  Indentures Without Consent of Holders

  	
  31

  
	
  Section 9.02.

  	
          Supplemental
  Indentures With Consent of Holders

  	
  31

  
	
  Section 9.03.

  	
          Execution
  of Supplemental Indentures

  	
  32

  
	
  Section 9.04.

  	
          Effect
  of Supplemental Indentures

  	
  32

  
	
  Section 9.05.

  	
          Conformity
  with Trust Indenture Act

  	
  32

  
	
  Section 9.06.

  	
          Reference
  in Securities to Supplemental Indentures

  	
  32

  
	
  ARTICLE TEN

  	
  COVENANTS

  	
  32

  
	
  Section 10.01.

  	
          Payment
  of Principal, Premium and Interest

  	
  32

  
	
  Section 10.02.

  	
          Maintenance
  of Office or Agency

  	
  33

  
	
  Section 10.03.

  	
          Money
  for Securities Payments to Be Held in Trust

  	
  33

  
	
  Section 10.04.

  	
          Statement
  by Officers as to Default

  	
  34

  
	
  Section 10.05.

  	
          Existence

  	
  34

  
	
  Section 10.06.

  	
          Maintenance
  of Properties

  	
  34

  
	
  Section 10.07.

  	
          Payment
  of Taxes and Other Claims

  	
  34

  
	
  Section 10.08.

  	
          Maintenance
  of Insurance

  	
  34

  
	
  Section 10.09.

  	
          Waiver
  of Certain Covenants

  	
  34

  
	
  ARTICLE ELEVEN

  	
  OPTIONAL
  REDEMPTION OF SECURITIES

  	
  35

  
	
  Section 11.01.

  	
          Applicability
  of Article

  	
  35

  
	
  Section 11.02.

  	
          Election
  to Redeem; Notice to Trustee

  	
  35

  
	
  Section 11.03.

  	
          Selection
  by Trustee of Securities to Be Redeemed

  	
  35

  
	
  Section 11.04.

  	
          Notice
  of Redemption

  	
  35

  
	
  Section 11.05.

  	
          Deposit
  of Redemption Price

  	
  36

  
	
  Section 11.06.

  	
          Securities
  Payable on Redemption Date

  	
  36

  
	
  Section 11.07.

  	
          Securities
  Redeemed in Part

  	
  36

  
	
  ARTICLE TWELVE

  	
  SINKING
  FUNDS

  	
  36

  
	
  Section 12.01.

  	
          Applicability
  of Article

  	
  36

  
	
  Section 12.02.

  	
          Satisfaction
  of Sinking Fund Payments with Securities

  	
  37

  
	
  Section 12.03.

  	
          Redemption
  of Securities for Sinking Fund

  	
  37

  
	
  ARTICLE THIRTEEN

  	
  DEFEASANCE
  AND COVENANT DEFEASANCE

  	
  37

  
	
  Section 13.01.

  	
          Company’s
  Option to Effect Defeasance or Covenant Defeasance

  	
  37

  



 


ii

















 


TABLE OF CONTENTS


Cont’d


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  Section 13.02.

  	
          Defeasance
  and Discharge

  	
  37

  
	
  Section 13.03.

  	
          Covenant
  Defeasance

  	
  37

  
	
  Section 13.04.

  	
          Conditions
  to Defeasance or Covenant Defeasance

  	
  38

  
	
  Section 13.05.

  	
          Deposited
  Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
  Provisions

  	
  39

  
	
  Section 13.06.

  	
          Reinstatement

  	
  39

  
	
  ARTICLE FOURTEEN

  	
  SUBORDINATION
  OF SECURITIES

  	
  40

  
	
  Section 14.01.

  	
          Securities
  Subordinate to Senior Debt

  	
  40

  
	
  Section 14.02.

  	
          Payment
  Over of Proceeds Upon Dissolution, Etc

  	
  40

  
	
  Section 14.03.

  	
          No
  Payment When Senior Debt in Default

  	
  40

  
	
  Section 14.04.

  	
          Payment
  Permitted If No Default

  	
  41

  
	
  Section 14.05.

  	
          Subrogation
  to Rights of Holders of Senior Debt

  	
  41

  
	
  Section 14.06.

  	
          Provisions
  Solely to Define Relative Rights

  	
  42

  
	
  Section 14.07.

  	
          Trustee
  to Effectuate Subordination

  	
  42

  
	
  Section 14.08.

  	
          No
  Waiver of Subordination Provisions

  	
  42

  
	
  Section 14.09.

  	
          Notice
  to Trustee

  	
  42

  
	
  Section 14.10.

  	
          Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
  43

  
	
  Section 14.11.

  	
          Trustee
  Not Fiduciary for Holders of Senior Debt

  	
  43

  
	
  Section 14.12.

  	
          Rights
  of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights

  	
  43

  
	
  Section 14.13.

  	
          Article Applicable
  to Paying Agents

  	
  43

  
	
  Section 14.14.

  	
          Defeasance
  of this Article Fourteen

  	
  43

  



 


iii
















 


Certain
Sections of this Indenture relating to Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  ss.310(a)(1)

  	
   

  	
  609

  
	
  (a)(2)

  	
   

  	
  609

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  608

  
	
  ss.311(a)

  	
   

  	
  613

  
	
  (b)

  	
   

  	
  613

  
	
  ss.312(a)

  	
   

  	
  701

  
	
  (b)

  	
   

  	
  702

  
	
  (c)

  	
   

  	
  702

  
	
  ss.313(a)

  	
   

  	
  703

  
	
  (b)

  	
   

  	
  703

  
	
  (c)

  	
   

  	
  703

  
	
  (d)

  	
   

  	
  703

  
	
  ss.314(a)

  	
   

  	
  704

  
	
  (a)(4)

  	
   

  	
  101

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  102

  
	
  (c)(2)

  	
   

  	
  102

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  102

  
	
  ss.315(a)

  	
   

  	
  601

  
	
  (b)

  	
   

  	
  602

  
	
  (c)

  	
   

  	
  601

  
	
  (d)

  	
   

  	
  601

  
	
  (e)

  	
   

  	
  514

  
	
  ss.316(a)

  	
   

  	
  101

  
	
  (a)(1)(A)

  	
   

  	
  502

  
	
  (a)(1)(B)

  	
   

  	
  513

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104

  
	
  ss.317(a)(1)

  	
   

  	
  503

  
	
  (a)(2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  ss.318(a)

  	
   

  	
  107

  



 


NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture


 


iv

















 


[SENIOR/SUBORDINATED] INDENTURE, dated as of                    ,
between MoSys, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the “Company” ), having its principal office
at 3301 Olcott Street Santa Clara, California 95054, and                     ,
a                     
duly organized and existing under the laws of                     
as Trustee (herein called the “Trustee” ).


 


RECITALS OF
THE COMPANY


 


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


 


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


 


NOW,
THEREFORE, for and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:


 


ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.01. Definitions.


 


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


 


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


 


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


 


(c) all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term “generally accepted accounting principles,” or GAAP,
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the Issue Date;


 


(d) unless
otherwise specifically set forth herein, all calculations or determinations of
a Person shall be performed or made on a consolidated basis in accordance with
generally accepted accounting principles;


 


(e) unless
the context otherwise requires, any reference to an “Article” or a “Section” refers to
an Article or a Section, as the case may be, of this Indenture; and


 


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


 


Certain
terms, used principally in Article 14, are defined in that Article.


 


“Act”, when used with respect to
any Holder, has the meaning specified in Section 104.


 


“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
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.


 


“Authenticating Agent” means any
Person authorized by the Trustee pursuant to Section 614 to act on behalf
of the Trustee to authenticate Securities of one or more series.


 


“Bankruptcy Code” means Title
11, United States Bankruptcy Code of 1978, as amended, or any similar United
States federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.


 


1

















 


“Board of Directors” means either
the board of directors of the Company or any duly authorized committee of that
board.


 


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


 


“Business Day”, when used
with respect to any Place of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or executive order to
close.


 


“Capital Lease Obligation” means, at any
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be
capitalized on the balance sheet in accordance with GAAP.


 


“Capital Stock” means
(i) in the case of a corporation, capital stock, (ii) in the case of
any association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) or capital
stock and (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such partnership.


 


“Cash Equivalents” means
(i) United States dollars, (ii) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof having maturities of less than one year from the date
of acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of less than one year from the date of acquisition, bankers’
acceptances with maturities of less than one year and overnight bank deposits,
in each case with any lender party to the Credit Agreement or with any domestic
commercial bank having capital and surplus in excess of $            
million and a [Rating of                    
or better], (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (ii) and
(iii) entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper
having the highest rating obtainable from Moody’s Investors Service, Inc.
or Standard & Poor’s Ratings Group, and in each case maturing within
twelve months after the date of acquisition, and (vi) money market funds
at least 95% of the assets of which constitute Cash Equivalents of the kinds
described in clauses (i)-(v) of this definition.


 


“Change of Control” means the
occurrence of any of the following:


 


(i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation) in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole to any “person”
(as such term is used in Section 13(d)(3) of the Exchange Act);


 


(ii) the
adoption of a plan relating to the liquidation or dissolution of the Company;


 


(iii) the
acquisition, directly or indirectly, by any Person or group (as such term is
used in Section 13(d)(3) of the Exchange Act) of 50% or more of the
voting power of the voting stock of the Company by way of merger or
consolidation or otherwise; or


 


(iv) the
Continuing Directors cease for any reason to constitute a majority of the
directors of the Company then in office.


 


For
purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Company shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.


 


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


 


“Common Stock” of any Person
means Capital Stock of such Person that does not rank prior, as to the payment
of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.


 


2

















 


“Company” means the
Person named as the “Company”
in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company”
shall mean such successor Person.


 


“Continuing Directors” means, as of
any date of determination, any member of the Board of Directors who
(i) was a member of such Board of Directors on the Issue Date, or
(ii) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election.


 


“Company Request” or “Company Order” means
a written request or order signed in the name of the Company by its Chairman of
the Board, its Chief Executive Officer, its Chief Operating Officer, its Chief
Financial Officer, its President, and, without duplication, by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.


 


“Corporate Trust Office” means the
principal office of the Trustee in                     
at which at any particular time its corporate trust business shall be
administered.


 


“Corporation” means a
corporation, association, company, joint-stock company or business trust.


 


“Covenant Defeasance” has the
meaning specified in Section 1303.


 


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


 


“Defaulted Interest” has the
meaning specified in Section 307.


 


“Defeasance” has the
meaning specified in Section 1302.


 


“Depositary” means, with
respect to Securities of any series issuable in whole or in part in the form of
one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated
by Section 301.


 


“Disqualified Stock” means any
Capital Stock that, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof
(other than upon a Change of Control of the Company in circumstances where the
holders of the Securities would have similar rights), in whole or in part on or
prior to one year after the Stated Maturity of the Securities.


 


“Equity Interests” means Capital
Stock and all warrants, options or other rights to acquire Capital Stock
(including any Indebtedness or Disqualified Stock that is convertible into, or
exchangeable for, Capital Stock).


 


“Event of Default” has the
meaning specified in Section 501.


 


“Exchange Act” means the
Securities Exchange Act of 1934 and any statute successor thereto, in each case
as amended from time to time.


 


“Expiration Date” has the
meaning specified in Section 104.


 


“GAAP” means generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board, or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect on the Issue Date.


 


“Global Security” means a
Security that evidences all or part of the Securities of any series and bears
the legend set forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).


 


“Guarantee” means a
guarantee (other than by endorsement of negotiable instruments for collection
or deposit in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, by way of a pledge of assets or through
letters of credit and or reimbursement agreements in respect thereof), of all
or any part of any Indebtedness.


 


“Hedging Obligations” means, with
respect to any Person, the Obligations of such Person under (i) interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and (ii) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates.


 


3

















 


“Holder” means a Person in whose
name a Security is registered in the Security Register


 


“Immediate Family Member” means, with
respect to any individual, such individual’s spouse (past or current),
descendants (natural or adoptive, of the whole or half blood) of the parents of
such individual, such individual’s grandparents and parents (natural or
adoptive), and the grandparents, parents and descendants of parents (natural or
adoptive, of the whole or half blood) of such individual’s spouse (past or
current).


 


“Incur” means, with respect to any
obligation of any Person, to create, issue, incur, assume or directly or
indirectly guarantee or in any other manner become directly or indirectly
liable for any Indebtedness (and “incurrence”, “incurred, “incurable” and “incurring” shall
have meanings correlative to the foregoing).


 


“Indebtedness” means, with
respect to any Person, whether or not contingent, (i) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property
or services (other than current trade liabilities incurred in the ordinary
course of business and payable in accordance with customary practices) or which
is evidenced by a note, bond, debenture or similar instrument, (ii) all
Capital Lease Obligations of such Person, (iii) all obligations of such
Person in respect of letters of credit or bankers’ acceptances issued or
created for the account of such Person, (iv) all Hedging Obligations of
such Person, (v) all liabilities secured by any Lien on any property owned
by such Person even if such Person has not assumed or otherwise become liable
for the payment thereof to the extent of the value of the property subject to
such Lien, and (vi) to the extent not otherwise included, any guarantee by
such person of any other Person’s indebtedness or other obligations described
in clauses (i) through (v) above.


 


“Indenture” means this instrument as originally executed
and as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of
particular series of Securities established as contemplated by
Section 301.


 


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


 


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


 


“Investment Company Act” means the
Investment Company Act of 1940 and any statute successor thereto, in each case
as amended from time to time.


 


“Issue Date” means the date
of initial issuance of the Securities pursuant to this Indenture.


 


“Lien” means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in any asset and any filing of,
or agreement to give, any financing statement under the “Uniform Commercial Code”
(or equivalent statutes) of any jurisdiction).


 


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


 


“Notice of Default” means a
written notice of the kind specified in Section 501(d).


 


“Officer” means, with
respect to any Person, the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.


 


“Officers’ Certificate” means a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary, of the Company.


 


“Opinion of Counsel” means an
opinion from legal counsel who is reasonably acceptable to the Trustee. The
counsel may be an employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.


 


“Original Issue Discount Security” means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.


 


4

















 


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


 


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


 


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


 


(iii) Securities
as to which Defeasance has been effected pursuant to Section 1302; and


 


(iv) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;


 


Provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated
by Section 301, of the principal amount of such Security (or, in the case
of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.


 


“Paying Agent” means any
Person authorized by the Company to pay the principal of or any premium or
interest on any Securities on behalf of the Company


 


“Person” means any individual,
corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business).


 


“Place of Payment”, when used
with respect to the Securities of any series, means the place or places where
the principal of and any premium and interest on the Securities of that series
are payable as specified as contemplated by Section 301.


 


“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.


 


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


 


“Redemption Price”, when used
with respect to any Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.


 


5

















 


“Regular Record Date” for the
interest payable on any Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated by Section 301.


 


“Responsible Officer”, when used
with respect to the Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.


 


“Restricted Subsidiary” means a
Subsidiary of the Company other than an Unrestricted Subsidiary.


 


“Securities” has the
meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.


 


“Securities Act” means the
Securities Act of 1933 and any statute successor thereto, in each case as
amended from time to time.


 


“Security Register” and “Security Registrar”
have the respective meanings specified in Section 305.


 


“Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section 307.


 


[IF
SUBORDINATED INDENTURE: “Senior
Bank Debt” means (i) the Indebtedness outstanding under the
senior credit facility, if any, and (ii) all Obligations incurred by or
owing to the holders or their agent or representatives of such Indebtedness
outstanding under the senior credit facility if any, (including, but not
limited to, all fees and expenses of counsel and all other interest, charges,
fees and expenses).


 


“Senior Debt” means


 


(i) with
respect to the Company, the principal of and interest (including post-petition
interest whether or not allowed as a claim) on, and all other amounts owing in
respect of, (a) Senior Bank Debt, and (b) any other Indebtedness
permitted to be incurred by the Company under the terms of this Indenture
(including, but not limited to, reasonable fees and expenses of counsel and all
other charges, fees and expenses incurred in connection with such
Indebtedness), unless the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding expressly provides that
such Indebtedness is on a parity with or subordinated in right of payment to
the Securities; and


 


(ii) with
respect to any Subsidiary Guarantor, the principal of and interest (including
post-petition interest whether or not allowed as a claim) on, and all other
amounts owing in respect of, (a) Senior Bank Debt and (b) any other
Indebtedness permitted to be incurred by such Subsidiary Guarantor under the
terms of this Indenture (including, but not limited to, reasonable fees and
expenses of counsel and all other charges, fees and expenses incurred in
connection with such Indebtedness), unless the instrument creating or
evidencing such Indebtedness or pursuant to which such Indebtedness is
outstanding expressly provides that such Indebtedness is on a parity with or
subordinated in right of payment to the Subsidiary Guarantee of such Subsidiary
Guarantor.


 


Notwithstanding
the foregoing, Senior Debt shall not include (v) any Indebtedness that is
represented by Disqualified Stock, (w) any liability for federal, state,
local, or other taxes, (x) any Indebtedness among or between the Company,
any Restricted Subsidiary or any of their Affiliates, (y) any trade
payables and any Indebtedness to trade creditors (other than amounts accrued
thereon) incurred for the purchase of goods or materials, or for services
obtained, in the ordinary course of business or any Obligations to trade
creditors in respect of any such Indebtedness, or (z) any Indebtedness
(other than Senior Bank Debt) that is incurred in violation of this Indenture.


 


“Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section 307.]


 


“Stated Maturity” means with
respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for the
payment thereof.


 


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


 


6

















 


directly
or indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the
sole general partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (b) the only general partners of which are
such Person or one or more Subsidiaries of such Person (or any combination
thereof).


 


“Trustee” means the
Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, “Trustee” as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.


 


“Trust Indenture Act” means the
Trust Indenture Act of 1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors of the Company,
as provided below) and any Subsidiary of an Unrestricted Subsidiary. The Board
of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary if all of the following conditions apply: (a) neither the
Company nor any of its Restricted Subsidiaries provides credit support for any
Indebtedness of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness), (b) such Subsidiary is not
liable, directly or indirectly, with respect to any Indebtedness other than
Unrestricted Subsidiary Indebtedness, and (c) such Unrestricted Subsidiary
does not own any Capital Stock of any Subsidiary of the Company that has not
theretofore been or is not simultaneously being designated an Unrestricted
Subsidiary. Any such designation by the Board of Directors of the Company shall
be evidenced to the Trustee by filing with the Trustee a board resolution
giving effect to such designation and an Officers’ Certificate certifying that
such designation complies with the foregoing conditions. The Board of Directors
of the Company may designate any Unrestricted Subsidiary as a Restricted
Subsidiary.


 


“U.S. Government Obligation” has the
meaning specified in Section 1304.


 


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


 


Section 1.02. Compliance Certificates and Opinions.


 


Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
such certificates and opinions as may be required under the Trust Indenture
Act. Each such certificate or opinion shall be given in the form of an Officers’
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (except for certificates provided for in
Section 1004) shall include:


 


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


 


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


 


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


 


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


 


Section 1.03. Form of Documents Delivered to
Trustee.


 


In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that 


 


7

















 


they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


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


 


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


 


Section 1.04. Acts of Holders; Record Dates.


 


Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.


 


The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.


 


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


 


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


 


The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of (i) any Notice of Default,
(ii) any declaration of acceleration referred to in Section 502, (iii) any
request to institute proceedings referred to in Section 507(2) or
(iv) any direction referred to in Section 512. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be entitled to
take the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is 


 


8

















 


taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.


 


With
respect to any record date set pursuant to this Section, the Company may
designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the Trustee in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If
an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph.


 


Without
limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount.


 


Section 1.05. Notices, Etc., to Trustee and
Company.


 


Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:


 


(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention:                     ;
or


 


(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.


 


Section 1.06. Notice to Holders; Waiver.


 


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


 


In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.


 


Section 1.07. Conflict with Trust Indenture Act.


 


If
any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act which is required under such Act to be a part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.


 


Section 1.08. Effect of Headings and Table of Contents.


 


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


 


Section 1.09. Successors and Assigns.


 


All
agreements in this Indenture by the Company shall bind its successors and
assigns. All agreements in this Indenture by the Trustee shall bind its
successors.


 


9
















 


Section 1.10. Separability Clause.


 


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


 


Section 1.11. Benefits of Indenture.


 


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


 


Section 1.12. Governing Law.


 


This
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.


 


Section 1.13. Legal Holidays.


 


In
any case where any Interest Payment Date, Redemption Date or Stated Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity.


 


ARTICLE TWO

SECURITY FORMS


 


Section 2.01. Forms Generally.


 


The
Securities of each series shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution
thereof. If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.


 


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


 


Section 2.02. Form of Face of Security.


 


[Insert
any legend required by the Internal Revenue Code and the regulations
thereunder.]


 


 


 


	
  No.
  

  	
  $

  



 


MoSys,
Inc., a corporation duly organized and existing under the laws of Delaware
(herein called the “Company”,
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to                     ,
or registered assigns, the principal sum of                     
Dollars on                     
[if the Security is to bear interest prior to Maturity, insert — and to pay
interest thereon from                     
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on                     
and                     
in each year, commencing                     ,
at the rate of        % per annum, until the
principal hereof is paid or made available for payment, provided that any principal
and premium, and any such


 


10

















 


installment
of interest, which is overdue shall bear interest at the rate of        %
per annum (to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the                     
or                     
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture]. [If the Security is not to bear interest prior to
Maturity, insert — The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of        %
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment. Interest on any overdue principal or premium shall be
payable on demand. Any such interest on overdue principal or premium which is not
paid on demand shall bear interest at the rate of        %
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall
be payable on demand.]


 


Payment
of the principal of (and premium, if any) and any such interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in                     ,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.


 


Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect
as if set forth at this place.


 


Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.


 


In
Witness Whereof, the Company has caused this instrument to be duly executed
under its corporate seal.


 


	
  Dated:

  	
   

  	
   

  	
  MoSys, Inc.

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
  Title:

  	
   

  	
   

  



 


Section 2.03. Form of Reverse of Security.


 


This
Security is one of a duly authorized issue of securities of the Company (herein
called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of                     
(herein called the “Indenture”,
which term shall have the meaning assigned to it in such instrument), between
the Company and                     ,
as Trustee (herein called the “Trustee”, which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [if applicable, insert — limited in
aggregate principal amount to $       ].


 


[If
applicable, insert — The Securities of this series are subject to redemption
upon not less than 30 days’ notice by mail.] [If applicable, insert —
(1) on                     
in any year commencing with the year                     
and ending with the year                     
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable,
insert — on or after                     ],
as a whole or in part,


 


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at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert — on
or before                     ,
       %, and if redeemed] during the
12-month period beginning                     
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and
thereafter at a Redemption Price equal to        %
of the principal amount, together in the case of any such redemption [if
applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]


 


[If
applicable, insert — The Securities of this series are subject to redemption
upon not less than 30 days’ notice by mail, (1) on             
in any year commencing with the year             
and ending with the year             
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert — on or after             ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning             
of the years indicated,


 


	
   

  	
   

  	
  Redemption
  Price for

  	
   

  	
   

  	
   

  
	
  Year

  	
   

  	
  Redemption
  Through

  Operation of the Sinking

  Fund

  	
   

  	
  Redemption
  Otherwise

  Than Through Operation of

  the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and
thereafter at a Redemption Price equal to        %
of the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]


 


[If
applicable, insert — Notwithstanding the foregoing, the Company may not, prior
to             ,
redeem any Securities of this series as contemplated by [if applicable, insert
— Clause (2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than             
per annum.]


 


[If
applicable, insert — The sinking fund for this series provides for the
redemption on             
in each year beginning with the year             
and ending with the year             
of [if applicable, insert — not less than $       
(“mandatory sinking fund”)
and not more than] $        aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert — mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert — mandatory] sinking fund payments otherwise required to
be made [if applicable, insert — , in the inverse order in which they become
due.]


 


[If
the Security is subject to redemption of any kind, insert — In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]


 


The
indebtedness evidenced by this Security is, to the extent set forth in the
Indenture, subordinate and subject in right of payment to the prior payment in
full in cash or Cash Equivalents of all Senior Debt, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.


 


12

















 


[If
applicable, insert — The Indenture contains provisions for defeasance at any
time of [the entire indebtedness of this Security] [or] [certain restrictive
covenants and Events of Default with respect to this Security] [, in each case]
upon compliance with certain conditions set forth in the Indenture.]


 


[If
the Security is not an Original Issue Discount Security, insert — If an Event
of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]


 


[If
the Security is an Original Issue Discount Security, insert — If an Event of
Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to — insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and
interest (in each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company’s obligations in respect of the
payment of the principal of and premium and interest, if any, on the Securities
of this series shall terminate.]


 


The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of more than 50% in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.


 


As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal amount
of Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.


 


No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.


 


As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.


 


The
Securities of this series are issuable only in registered form without coupons
in denominations of $          and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.


 


No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.


 


13

















 


Prior
to due presentment of this Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.


 


All
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.


 


Section 2.04. Form of Legend for Global Securities.


 


Unless
otherwise specified as contemplated by Section 301 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:


 


This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a Security
registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.


 


Section 2.05. Form of Trustee’s Certificate of
Authentication.


 


The
Trustee’s certificates of authentication shall be in substantially the
following form:


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


ARTICLE
THREE

THE SECURITIES


 


Section 3.01. Amount Unlimited; Issuable in Series.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.


 


The Securities may be issued
in one or more series. There shall be established in or pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series;


 


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


 


(b) 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 pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);


 


(c) the Person to whom any
interest on a Security of the series shall be payable, if other than the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest;


 


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


 


(e) the rate or rates at
which any Securities of the series shall bear interest, if any, the date or
dates from which any such interest shall accrue, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any
such interest payable on any Interest Payment Date;


 


(f) the place or places
where the principal of and any premium and interest on any Securities of the
series shall be payable;


 


14

















 


(g)
the period or periods within which, the price or prices at which and the terms
and conditions upon which any Securities of the series may be redeemed, in
whole or in part, at the option of the Company and, if other than by a Board
Resolution, the manner in which any election by the Company to redeem the Securities
shall be evidenced;


 


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


 


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


 


(j)
if the amount of principal of or any premium or interest on any Securities of
the series may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts shall be determined;


 


(k)
if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition of
Outstanding in Section 101;


 


(l)
if the principal of or any premium or interest on any Securities of the series
is to be payable, at the election of the Company or the Holder thereof, in one
or more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency units
in which the principal of or any premium or interest on such Securities as to
which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);


 


(m)
if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;


 


(n)
if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);


 


(o)
if applicable, that the Securities of the series, in whole or any specified
part, shall be defeasible pursuant to Section 1302 or Section 1303 or
both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;


 


(p)
if applicable, that any Securities of the series shall be issuable in whole or
in part in the form of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 204 and any circumstances in addition to
or in lieu of those set forth in Clause (2) of the last paragraph of
Section 305 in which any such Global Security may be exchanged in whole or
in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;


 


(q)
any addition to or change in the Events of Default which applies to any
Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;


 


(r)
any addition to or change in the covenants set forth in Article Ten which
applies to Securities of the series;


 


(s)
if applicable, that the Securities of the series are convertible into or
exchangeable for Common Stock or other securities of the Company, the period or
periods within which, the price or prices at which and the terms and conditions
upon which, and the limitations and restrictions, if any, upon which, any
Securities of the series shall be convertible or exchangeable, in whole or in
part, into Common Stock or other securities of the Company; and


 


(t)
any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(e)).


 


15

















 


All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officers’ Certificate referred to
above or in any such indenture supplemental hereto.


 


If
any of the terms of the series are established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of the series.


 


Section 3.02. Denominations.


 


The
Securities of each series shall be issuable only in registered form without
coupons and only in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such specified denomination with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.


 


Section 3.03. Execution, Authentication, Delivery and
Dating.


 


The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.


 


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


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,


 


(a)
if the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;


 


(b)
if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and


 


(c)
that such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.


 


If
such form or terms have been so established, the Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.


 


Notwithstanding
the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.


 


Each
Security shall be dated the date of its authentication.


 


No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the 


 


16

















 


only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.


 


Section 3.04. Temporary Securities.


 


Pending
the preparation of definitive Securities of any series, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.


 


If
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.


 


Section 3.05. Registration, Registration of Transfer and
Exchange.


 


The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the “Security
Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby appointed “Security Registrar”
for the purpose of registering Securities and transfers of Securities as herein
provided.


 


Upon
surrender for registration of transfer of any Security of a series at the
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and
aggregate principal amount.


 


At
the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.


 


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


 


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


 


No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.


 


If
the Securities of any series (or of any series and specified tenor) are to be
redeemed in part, the Company shall not be required (a) to issue, register
the transfer of or exchange any Securities of that series (or of that series
and 


 


17

















 


specified
tenor, as the case may be) during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (b) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.


 


The
provisions of clauses (a), (b), (c) and (d) below shall apply only to
Global Securities:


 


(a)
Each Global Security authenticated under this Indenture shall be registered in
the name of the Depositary designated for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.


 


(b)
Notwithstanding any other provision in this Indenture, no Global Security may
be exchanged in whole or in part for Securities registered, and no transfer of
a Global Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a nominee thereof
unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or
(B) has ceased to be a clearing agency registered under the Exchange Act,
(ii) there shall have occurred and be continuing an Event of Default with
respect to such Global Security or (iii) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.


 


(c)
Subject to Clause (b) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.


 


(d)
Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security or any portion thereof,
whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.


 


Section 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.


 


If
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.


 


If
there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Security and
(b) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.


 


In
case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.


 


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


 


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


 


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


 


Section 3.07. Payment of Interest; Interest Rights
Preserved.


 


Except
as otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.


 


18

















 


Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:


 


(a)
The Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be given to
each Holder of Securities of such series in the manner set forth in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(b).


 


(b)
The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.


 


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


 


Section 3.08. Persons Deemed Owners.


 


Prior
to due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.


 


Section 3.09. Cancellation.


 


All
Securities surrendered for payment, redemption, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.


 


Section 3.10. Computation of Interest.


 


Except
as otherwise specified as contemplated by Section 301 for Securities of
any series, interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.


 


19
















 


ARTICLE FOUR

SATISFACTION AND DISCHARGE


 


Section 4.01. Satisfaction and Discharge of Indenture.


 


This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when


 


(a) either:


 


(i) all
Securities theretofore authenticated and delivered (other than
(A) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (B) Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or


 


(ii) all
such Securities not theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or (B) will become due and payable
at their Stated Maturity within one year, or (C) are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be.


 


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


 


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


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee
to any Authenticating Agent under Section 614 and, if money shall have
been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.


 


Section 4.02. Application of Trust Money.


 


Subject
to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.


 


ARTICLE FIVE

REMEDIES


 


Section 5.01. Events of Default.


 


“Event of Default”, wherever used
herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):


 


(a) default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or


 


(b) default
in the payment of the principal of or any premium on any Security of that
series at its Maturity; or


 


(c) default
in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or


 


20

















 


(d) default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or


 


(e) the
entry by a court having jurisdiction in the premises of:


 


(i) a
decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law; or


 


(ii) a
decree or order adjudging the Company or any such Restricted Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any such Restricted Subsidiary under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such Restricted
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or


 


(f) the
commencement by the Company or any Restricted Subsidiary of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or any such
Restricted Subsidiary to the entry of a decree or order for relief in respect
of the Company or any such Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any such Restricted
Subsidiary, or the filing by the Company or any such Restricted Subsidiary of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company or any such
Restricted Subsidiary to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such Restricted
Subsidiary or of any substantial part of the property of the Company or any
such Restricted Subsidiary, or the making by the Company or any such Restricted
Subsidiary of an assignment for the benefit of creditors, or the admission by
the Company or any such Restricted Subsidiary in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action
by the Company or any such Restricted Subsidiary in furtherance of any such
action; or


 


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


 


Section 5.02. Acceleration of Maturity; Rescission and
Annulment.


 


If
an Event of Default (other than an Event of Default specified in
Section 501(e) or 501(f)) with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in clause (e) or (f) of Section 501 with respect to
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) shall automatically,
and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.


 


At
any time after such a declaration of acceleration with respect to Securities of
any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may waive any
existing Event of Default and its consequences under this Indenture except a
continuing Event of Default in payment of interest or premium on, or the
principal of, the Notes.


 


21

















 


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


 


The
Trustee shall not be required to act upon an Event of Default unless it has
actual knowledge of such Event of Default.


 


Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.


 


The Company covenants that
if:


 


(a) default is made in
the payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or


 


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


 


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


 


Section 5.04. Trustee May File Proofs of Claim.


 


In
case of any judicial proceeding relative to the Company (or any other obligor
upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 607.


 


No
provision of this Indenture shall be deemed to authorize 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; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or
other similar committee.


 


Section 5.05. Trustee May Enforce Claims Without
Possession of Securities.


 


All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.


 


Section 5.06. Application of Money Collected.


 


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


 


FIRST: To the payment of all
amounts due the Trustee under Section 607;


 


22

















 


[IF SUBORDINATED INDENTURE: SECOND: To the
extent provided in Article Fourteen, to the holders of Senior Debt of the
Company in accordance with Article Fourteen;] and


 


THIRD:
To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively.


 


Section 5.07. Limitation on Suits.


 


No
Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:


 


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


 


(b) the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;


 


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


 


(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;


 


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


 


Section 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and any premium and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.


 


Section 5.09. Restoration of Rights and Remedies.


 


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


 


Section 5.10. Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


23

















 


Section 5.11. Delay or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Securities to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.


 


Section 5.12. Control by Holders.


 


The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that:


 


(a) such direction
shall not be in conflict with any rule of law or with this Indenture; and


 


(b) the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.


 


Section 5.13. Waiver of Past Defaults.


 


The Holders of not less than
a majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default:


 


(a) in the payment of
the principal of or any premium or interest on any Security of such series; or


 


(b) in respect of a
covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of
such series affected. Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


Section 5.14. 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, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.


 


Section 5.15. Waiver of Usury, Stay or Extension Laws.


 


The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any usury, 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 covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.


 


ARTICLE SIX

THE TRUSTEE


 


Section 6.01. Certain Duties and Responsibilities.


 


The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of 


 


24

















 


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.


 


Section 6.02. Notice of Defaults.


 


If
a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in clause
(d) of Section 501 with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term “default” means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Securities of such series.


 


Section 6.03. Certain Rights of Trustee.


 


Subject
to the provisions of Section 601:


 


(a) the
Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;


 


(b) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the
Board of Directors shall be sufficiently evidenced by a Board Resolution;


 


(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;


 


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


 


(e) 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 reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;


 


(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney; and


 


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


 


Section 6.04. Not Responsible for Recitals or Issuance
of Securities.


 


The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.


 


Section 6.05. May Hold Securities.


 


The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.


 


25

















 


Section 6.06. Money Held in Trust.


 


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


 


Section 6.07. Compensation and Reimbursement.


 


The
Company agrees


 


(a) to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);


 


(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture including
the reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and


 


(c) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.


 


Section 6.08. Conflicting Interests.


 


If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under — list here any prior
indentures between the Company and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of
the Trust Indenture Act].


 


Section 6.09. Corporate Trustee Required; Eligibility.


 


There
shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such, and has a combined capital and
surplus of at least $         and has
its Corporate Trust Office in the Borough of Manhattan, The City of New York.
If any such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of its supervising or examining authority, then
for the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.


 


Section 6.10. Resignation and Removal; Appointment of
Successor.


 


No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.


 


The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.


 


The
Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.


 


26

















 


If
at any time:


 


(a) the
Trustee shall fail to comply with Section 608 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months; or


 


(b) the
Trustee shall cease to be eligible under Section 609 and shall fail to
resign after written request therefor by the Company or by any such Holder; or


 


(c) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee or
Trustees.


 


If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.


 


The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.


 


Section 6.11. Acceptance of Appointment by Successor.


 


In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.


 


In
case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (b) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that 


 


27

















 


nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.


 


Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first
or second preceding paragraph, as the case may be.


 


No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.


 


Section 6.12. Merger, Conversion, Consolidation or
Succession to Business.


 


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


 


Section 6.13. Preferential Collection of Claims Against
Company.


 


If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).


 


Section 6.14. Appointment of Authenticating Agent.


 


The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$             and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall 


 


28

















 


be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 106 to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.


 


The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 607.


 


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


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  As Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.01. Company to Furnish Trustee Names and
Addresses of Holders.


 


The
Company will furnish or cause to be furnished to the Trustee:


 


(a) semi-annually,
not later than January 15 and July 15 in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of the preceding December 31 or
June 30, as the case may be, and


 


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


 


excluding
from any such list names and addresses received by the Trustee in its capacity
as Security Registrar.


 


Section 7.02. Preservation of Information;
Communications to Holders.


 


The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.


 


The
rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.


 


29
















 


Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.


 


Section 7.03. Reports by Trustee.


 


The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.


 


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 any Securities are
listed, with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.


 


Section 7.04. Reports by Company.


 


The
Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.


 


ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.01. Company May Consolidate, Etc.,
Only on Certain Terms.


 


The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:


 


(a) in
case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be
a corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed;


 


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


 


(c) if,
as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor Person, as the case
may be, shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and


 


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


 


Section 8.02. Successor Substituted.


 


Upon
any consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is merged
or to which 


 


30

















 


such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.


 


ARTICLE NINE

SUPPLEMENTAL INDENTURES


 


Section 9.01. Supplemental Indentures Without Consent
of Holders.


 


Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:


 


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


 


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


 


(c) to
add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be
for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of such series); or


 


(d) to
add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of Securities in uncertificated
form; or


 


(e) to
add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition, change or
elimination (i) shall neither (A) 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 (B) modify the rights of the Holder of
any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or


 


(f) to
establish the form or terms of Securities of any series as permitted by
Sections 201 and 301; or


 


(g) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611; or


 


(h) to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this clause (h) shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect.


 


Section 9.02. Supplemental Indentures With Consent of
Holders.


 


With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,


 


(a) change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or 


 


31

















 


change
any Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
modify the provisions of this Indenture with respect to the subordination of
the Securities in a manner materially adverse to the Holders; or


 


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


 


(c) modify
any of the provisions of this Section, Section 513 or Section 1009,
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 Security 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 and Section 1009, or the deletion of this proviso, in
accordance with the requirements of Section 611 and clause (h) of
Section 901.


 


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


 


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


 


Section 9.03. Execution of Supplemental Indentures.


 


In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Section 9.04. Effect of Supplemental Indentures.


 


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


 


Section 9.05. Conformity with Trust Indenture Act.


 


Every
supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act.


 


Section 9.06. Reference in Securities to Supplemental
Indentures.


 


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


 


ARTICLE TEN

COVENANTS


 


Section 10.01. Payment of Principal, Premium and
Interest.


 


The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium and interest
on the Securities of that series in accordance with the terms of the Securities
and this Indenture.


 


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Section 10.02. Maintenance of Office or Agency.


 


The
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.


 


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


 


Section 10.03. Money for Securities Payments to Be Held
in Trust.


 


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


 


Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, prior to each due date of the principal of or any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum sufficient
to pay such amount, such sum to be held as provided by the Trust Indenture Act,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act. The Company will cause each
Paying Agent for any series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of any
default by the Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the Securities of that
series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the
Securities of that series.


 


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


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in
            ,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.


 


33

















 


Section 10.04. Statement by Officers as to Default.


 


The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.


 


Section 10.05. Existence.


 


Subject
to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.


 


Section 10.06. Maintenance of Properties.


 


The
Company will cause all properties used or useful in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company or any Restricted
Subsidiary from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company or such
Restricted Subsidiary, desirable in the conduct of its business or the business
of any such Restricted Subsidiary and not disadvantageous in any material
respect to the Holders.


 


Section 10.07. Payment of Taxes and Other Claims.


 


The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any of its Restricted
Subsidiaries, and (b) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company
or any of its Restricted Subsidiaries; provided, however, that the Company or
such Restricted Subsidiary shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.


 


Section 10.08. Maintenance of Insurance.


 


The
Company shall, and shall cause its Restricted Subsidiaries to, keep at all
times all of their properties which are of an insurable nature insured against
loss or damage with insurers believed by the Company to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice. The Company shall, and shall cause its Restricted Subsidiaries to,
use the proceeds from any such insurance policy to repair, replace or otherwise
restore the property to which such proceeds relate.


 


Section 10.09. Waiver of Certain Covenants.


 


Except
as otherwise specified as contemplated by Section 301 for Securities of
such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to clause (r) of
Section 301 or clause (b) or (g) of Section 901 for the
benefit of the Holders of such series or in any of Sections 1005 to 1007,
inclusive, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.


 


34

















 


ARTICLE ELEVEN

OPTIONAL REDEMPTION OF SECURITIES


 


Section 11.01. Applicability of Article.


 


Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for such Securities) in accordance with this
Article.


 


Section 11.02. Election to Redeem; Notice to Trustee.


 


The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company
of less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 45 days prior to
but no more than 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.


 


Section 11.03. Selection by Trustee of Securities to Be
Redeemed.


 


If
less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not less than 30 days nor more than 60 days prior
to the Redemption Date by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not less than 30 days nor more than 60 days prior
to the Redemption Date by the Trustee, from the Outstanding Securities of such
series and specified tenor not previously called for redemption in accordance
with the preceding sentence.


 


The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption as aforesaid and, in case of any Securities selected for partial
redemption as aforesaid, the principal amount thereof to be redeemed.


 


The
provisions of the two preceding paragraphs shall not apply with respect to any
redemption affecting only a single Security, whether such Security is to be
redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.


 


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


 


Section 11.04. Notice of Redemption.


 


Notice
of redemption shall be given by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, at his address appearing in the Security
Register.


 


All
notices of redemption shall state:


 


(a) the
Redemption Date;


 


(b) the
Redemption Price;


 


(c) if
less than all the Outstanding Securities of any series consisting of more than
a single Security are to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the principal amounts) of 


 


35

















 


the
particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;


 


(d) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date;


 


(e) that
on the Redemption Date, if such is the case, the right of the holders of each
such Security to convert the Securities shall terminate;


 


(f) the
place or places where each such Security is to be surrendered for payment of
the Redemption Price; and


 


(g) that
the redemption is for a sinking fund, if such is the case.


 


Notice
of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company and shall be irrevocable.


 


Section 11.05. Deposit of Redemption Price.


 


Prior
to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.


 


Section 11.06. Securities Payable on Redemption Date.


 


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.


 


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


 


Section 11.07. Securities Redeemed in Part.


 


Any
Security which is to be redeemed only in part shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.


 


ARTICLE TWELVE

SINKING FUNDS


 


Section 12.01. Applicability of Article.


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.


 


The
minimum amount of any sinking fund payment provided for by the terms of any
Securities is herein referred to as a “mandatory sinking fund payment”, and any
payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an “optional sinking fund payment”. If provided
for by the terms of any Securities, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities as provided for by the
terms of such Securities.


 


36

















 


Section 12.02. Satisfaction of Sinking Fund Payments
with Securities.


 


The
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.


 


Section 12.03. Redemption of Securities for Sinking
Fund.


 


Not
less than 30 days prior to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing sinking fund payment for such Securities pursuant to
the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities pursuant to Section 1202
and will also deliver to the Trustee any Securities to be so delivered. Not
less than 15 days prior to each such sinking fund payment date, the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.


 


ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.01. Company’s Option to Effect Defeasance or
Covenant Defeasance.


 


The
Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible
pursuant to such Section 1302 or 1303, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the
conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities.


 


Section 13.02. Defeasance and Discharge.


 


Upon
the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be, the Company
shall be deemed to have been discharged from its obligations, with respect to
such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities when payments are due, (b) the
Company’s obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (d) this Article. Subject to compliance with
this Article, the Company may exercise its option (if any) to have this Section applied
to any Securities notwithstanding the prior exercise of its option (if any) to
have Section 1303 applied to such Securities.


 


Section 13.03. Covenant Defeasance.


 


Upon
the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be, (a) the
Company shall be released from its obligations under clause (c) of
Section 801, Sections 1006 through 1008, inclusive, and any covenants
provided pursuant to clause (r) of Section 301 or clause (b) or
(g) of Section 901 for the benefit of the Holders of such Securities;
and (b) the occurrence of any event specified in clause (d) of Section 501
(with respect to any of clause (c) of Section 801, Sections 1006
through 1008, inclusive, and any such covenants provided pursuant to clause
(r) of Section 301 or 


 


37

















 


clause
(b) or (g) of Section 901 shall be deemed not to be or result in
an Event of Default, in each case will respect to such Securities as provided
in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of clause (d) of Section 501),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.


 


Section 13.04. Conditions to Defeasance or Covenant
Defeasance.


 


The
following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case
may be:


 


(a) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by
Section 609 and agrees to comply with the provisions of this Article applicable
to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of such Securities, (i) money in an amount, or
(ii) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation”
means (x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.


 


(b) In
the event of an election to have Section 1302 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (i) or
(ii) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be subject to
Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not to
occur.


 


(c) In
the event of an election to have Section 1303 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.


 


(d) The
Company shall have delivered to the Trustee an Officer’s Certificate to the
effect that neither such Securities nor any other Securities of the same
series, if then listed on any securities exchange, will be delisted as a result
of such deposit.


 


(e) No
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or, with 


 


38

















 


regard
to any such event specified in clause (e) or (f) of Section 501,
at any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 90th day).


 


(f) Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act).


 


(g) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any material agreement or instrument to which
the Company or any of its Restricted Subsidiaries is a party or by which it is
bound.


 


(h) Such
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered under such Act or
exempt from registration thereunder.


 


(i) At
the time of such deposit, (i) no default in the payment of any principal
of or premium or interest on any Senior Debt shall have occurred and be
continuing, (ii) no event of default with respect to any Senior Debt shall
have resulted in such Senior Debt becoming, and continuing to be, due and
payable prior to the date on which it would otherwise have become due and
payable (unless payment of such Senior Debt has been made or duly provided
for), and (iii) no other event of default with respect to any Senior Debt
shall have occurred and be continuing permitting (after notice or lapse of time
or both) the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the date on which
it would otherwise have become due and payable.


 


(j) The
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied with.


 


Section 13.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous Provisions.


 


Subject
to the provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the “Trustee”)
pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.


 


Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1304 with respect
to any Securities which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.


 


Section 13.06. Reinstatement.


 


If
the Trustee or the Paying Agent is unable to apply any money in accordance with
this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated
as though no deposit had occurred pursuant to this Article with respect to
such Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 1305 with respect to
such Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.


 


39
















 


[IF SUBORDINATED INDENTURE:]


 


ARTICLE FOURTEEN

SUBORDINATION OF SECURITIES


 


Section 14.01. Securities Subordinate to Senior Debt.


 


The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article Four
and Article Thirteen), the payment of the principal of (and premium, if
any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt.


 


Section 14.02. Payment Over of Proceeds Upon
Dissolution, Etc.


 


In
the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in connection therewith, relative to the Company or to its creditors, as such,
or to its assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets or liabilities of the Company,
then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a “Proceeding”) the
holders of Senior Debt will be first entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Debt, or provision
shall be made for such payment, in cash or Cash Equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind or
character, on account of principal of (or premium, if any) or interest on or
other obligations in respect of the Securities or on account of any purchase or
other acquisition of Securities by the Company or any Subsidiary of the Company
(all such payments, distributions, purchases and acquisitions herein referred
to, individually and collectively, as a “Securities Payment”), and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Securities Payment which may be payable or deliverable in
respect of the Securities in any such Proceeding.


 


In
the event that, notwithstanding the foregoing provisions of this Section, the
Trustee receives payment or distribution of assets of the Company of any kind
or character, before all the Senior Debt is paid in full in cash or Cash
Equivalents, then and in such event such Securities Payment shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay the Senior Debt in
full in cash or Cash Equivalents.


 


For
purposes of this Article only, the words “any payment or distribution of
any kind or character, whether in cash, property or securities” shall not be
deemed to include a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or readjustment authorized by
an order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding Senior
Debt to at least the same extent as the Securities are so subordinated as
provided in this Article; provided, however, that (a) if a new corporation
results from such reorganization or readjustment, such corporation assumes any Senior
Debt not paid in full in cash or Cash Equivalents in connection with such
reorganization or readjustment and (b) the rights of the holders of such
Senior Debt are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for
the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article Eight.


 


Section 14.03. No Payment When Senior Debt in Default.


 


In
the event that any Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Securities Payment shall be made unless and
until such Senior Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of Senior Debt
shall have been paid in full, 


 


40

















 


or
provision shall have been made for such payment, in cash or Cash Equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt. “Senior Payment Default”
means any default in the payment of principal of (or premium, if any) or
interest on any Senior Debt when due, whether at the Maturity thereof or by
declaration of acceleration, call for redemption or otherwise.


 


In
the event that any Senior Nonmonetary Default (as defined below) shall have
occurred and be continuing, then, upon the receipt by the Company and the
Trustee of written notice of such Senior Nonmonetary Default from the
representatives of holders of the Designated Senior Debt to which such default
relates, the Company may not make any payments on account of the Securities or
on account of the purchase or redemption or other acquisition of Securities for
a period (the “blockage
period”) commencing on the date the Company and Trustee receive
such written notice and ending on the earlier of (a) the 179th day after
the date of such receipt of such written notice and (b) the date, if any,
on which the Designated Senior Debt to which such default relates is discharged
or such default is waived or otherwise cured. In any event, not more than one
blockage period may be commenced during any period of 360 consecutive days and
there shall be a period of at least 181 consecutive days in each period of 360
consecutive days when no blockage period is in effect. For all purposes of this
paragraph, no Senior Nonmonetary Default that existed or was continuing on the
date of commencement of any blockage period with respect to the Designated
Senior Debt initiating such blockage period will be, or can be, made the basis
for the commencement of a subsequent blockage period unless such default has
been cured or waived for a period of not less than 180 consecutive days. “Senior Nonmonetary Default”
means the occurrence or existence and continuance of any event of default, or
of any event which, after notice or lapse of time (or both), would become an
event of default, under the terms of any instrument pursuant to which any
Designated Senior Debt is outstanding, permitting (after notice or lapse of
time or both) one or more holders of such Senior Debt (or a trustee or agent on
behalf of the holders thereof) to declare such Senior Debt due and payable
prior to the date on which it would otherwise become due and payable, other
than a Senior Payment Default.


 


In
the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt, and shall have resulted in such
Senior Debt becoming or being declared, due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist,
or in the event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no Securities Payment shall
be made.


 


In
the event that, notwithstanding the foregoing, the Company shall make any
Securities Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, then and in such event, subject to
Section 1404, such Securities Payment shall be paid over and delivered
forthwith to the holders of the Senior Debt remaining unpaid, to the extent
necessary to pay in full all the Senior Debt.


 


The
provisions of this Section shall not apply to any Securities Payment with
respect to which Section 1402 would be applicable.


 


Section 14.04. Payment Permitted If No Default.


 


Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1402 or under the
conditions described in Section 1403, from making Securities Payments, or
(b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such Securities Payment by
the Holders, if, at the time of such application by the Trustee, it did not
have knowledge that such Securities Payment would have been prohibited by the
provisions of this Article.


 


Section 14.05. Subrogation to Rights of Holders of
Senior Debt.


 


Subject
to the payment in full of all amounts due or to become due on or in respect of
Senior Debt, or the provision for such payment, in cash or Cash Equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all Indebtedness of the Company which by its express terms is subordinated to
Indebtedness of the Company to substantially the same extent as the Securities
are subordinated to the Senior Debt and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior Debt) to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to the
Senior Debt until the 


 


41

















 


principal
of (and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders
of the Senior Debt of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as among the Company, its creditors other than holders of Senior Debt and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.


 


Section 14.06. Provisions Solely to Define Relative
Rights.


 


The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall
(a) impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.


 


Section 14.07. Trustee to Effectuate Subordination.


 


Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.


 


Section 14.08. No Waiver of Subordination Provisions.


 


No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.


 


Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Debt may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or releasing
the subordination provided in this Article or the obligations hereunder of
the Holders of the Securities to the holders of Senior Debt, do any one or more
of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew, increase or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (c) release any Person liable
in any manner for the payment or collection of Senior Debt; and
(d) exercise or refrain from exercising any rights against the Company and
any other Person.


 


Section 14.09. 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 Securities. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Debt or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least three Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and 


 


42

















 


to
apply the same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by it within
three Business Days prior to such date.


 


Subject
to the provisions of Section 601, the Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself to be a
holder of Senior Debt (or a trustee therefor) to establish that such notice has
been given by a holder of Senior Debt (or a trustee therefor). 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 Debt to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such payment
or distribution and any other facts pertinent to the rights of such Person
under this Article, 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.


 


Section 14.10. Reliance on Judicial Order or
Certificate of Liquidating Agent.


 


Upon
any payment or distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.


 


Section 14.11. Trustee Not Fiduciary for Holders of
Senior Debt.


 


The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company or
to any other Person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise.


 


Section 14.12. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee’s Rights.


 


The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article with respect to any Senior Debt which may at any
time be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.


 


Nothing
in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.


 


Section 14.13. Article Applicable to Paying
Agents.


 


In
case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term “Trustee” as used in
this Article shall in such case (unless the context otherwise requires) 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 in
addition to or in place of the Trustee; provided, however, that
Section 1414 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.


 


Section 14.14. Defeasance of this Article Fourteen.


 


The
subordination of the Securities provided by this Article is expressly made
subject to the provisions for defeasance or covenant defeasance in Article Thirteen
hereof and, anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance, the Securities
then outstanding shall thereupon cease to be subordinated pursuant to this Article Fourteen.


 


[Signatures on following page]


 


43

















 


This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument. In proving the existence
of this Indenture it shall not be necessary to produce more than one copy.


 


SIGNATURES


 


	
  Dated as of

  	
  ISSUER:

  
	
   

  	
  MOSYS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  TRUSTEE

  
	
   

  	
  [          ],
  AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


44