Exhibit 4.8


 


THE MANITOWOC COMPANY, INC.


 


to


 


                                                                                   ,


 


Trustee


 


 


INDENTURE


Dated as of
                          ,
2010


 


 


Subordinated Debt Securities


 

















 


TABLE OF CONTENTS*


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Parties

  	
   

  	
  1

  
	
  Recitals

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1. DEFINITIONS

  	
  1

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2. DEBT SECURITY FORMS

  	
  9

  
	
  SECTION 2.01.

  	
  Forms Generally

  	
  9

  
	
  SECTION 2.02.

  	
  Forms of Debt
  Securities

  	
  10

  
	
  SECTION 2.03.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  10

  
	
  SECTION 2.04.

  	
  Debt Securities in
  Global Form

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3. THE DEBT SECURITIES

  	
  12

  
	
  SECTION 3.01.

  	
  Title and Terms

  	
  12

  
	
  SECTION 3.02.

  	
  Denominations

  	
  14

  
	
  SECTION 3.03.

  	
  Payment of Principal
  and Interest

  	
  14

  
	
  SECTION 3.04.

  	
  Execution of Debt Securities

  	
  14

  
	
  SECTION 3.05.

  	
  Temporary Debt
  Securities

  	
  16

  
	
  SECTION 3.06.

  	
  Exchange and
  Registration of Transfer of Debt Securities

  	
  17

  
	
  SECTION 3.07.

  	
  Mutilated, Destroyed,
  Lost or Stolen Debt Securities

  	
  18

  
	
  SECTION 3.08.

  	
  Payment of Interest;
  Interest Rights Preserved

  	
  19

  
	
  SECTION 3.09.

  	
  Persons Deemed Owners

  	
  20

  
	
  SECTION 3.10.

  	
  Cancellation of Debt
  Securities Paid, etc.

  	
  20

  
	
  SECTION 3.11.

  	
  Currency and Manner of
  Payments

  	
  20

  
	
  SECTION 3.12.

  	
  CUSIP Numbers

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4. REDEMPTION OF DEBT SECURITIES; SINKING FUNDS

  	
  22

  
	
  SECTION 4.01.

  	
  Applicability of
  Article

  	
  22

  
	
  SECTION 4.02.

  	
  Notice of Redemption;
  Selection of Debt Securities

  	
  22

  
	
  SECTION 4.03.

  	
  Payment of Debt
  Securities Called for Redemption

  	
  24

  
	
  SECTION 4.04.

  	
  Exclusion of Certain
  Debt Securities from Eligibility for Selection for Redemption

  	
  24

  
	
  SECTION 4.05.

  	
  Provisions with Respect
  to any Sinking Funds

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5. PARTICULAR COVENANTS OF THE COMPANY

  	
  26

  
	
  SECTION 5.01.

  	
  Payment of Principal,
  Premium and Interest

  	
  26

  
	
  SECTION 5.02.

  	
  Offices for Notices and
  Payments, etc.

  	
  26

  
	
  SECTION 5.03.

  	
  Appointments to Fill
  Vacancies in Trustee’s Office

  	
  27

  



 






* This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.


 


i

















 


	
  SECTION 5.04.

  	
  Provisions as to Paying
  Agent

  	
  27

  
	
  SECTION 5.05.

  	
  Certificate to Trustee

  	
  27

  
	
  SECTION 5.06.

  	
  Waivers of Covenants

  	
  28

  
	
  SECTION 5.07.

  	
  Calculation of Original
  Issue Discount

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6. HOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  28

  
	
  SECTION 6.01.

  	
  Holders’ Lists

  	
  28

  
	
  SECTION 6.02.

  	
  Preservation and
  Disclosure of Lists

  	
  28

  
	
  SECTION 6.03.

  	
  Reports by the Company

  	
  29

  
	
  SECTION 6.04.

  	
  Reports by the Trustee

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT

  	
  30

  
	
  SECTION 7.01.

  	
  Events of Default

  	
  30

  
	
  SECTION 7.02.

  	
  Payment of Debt
  Securities Upon Default; Suit Therefor

  	
  32

  
	
  SECTION 7.03.

  	
  Application of Moneys
  Collected by Trustee

  	
  34

  
	
  SECTION 7.04.

  	
  Proceedings by Holders

  	
  34

  
	
  SECTION 7.05.

  	
  Proceedings by Trustee

  	
  35

  
	
  SECTION 7.06.

  	
  Remedies Cumulative and
  Continuing

  	
  35

  
	
  SECTION 7.07.

  	
  Direction of
  Proceedings and Waiver of Defaults by Majority of Holders

  	
  35

  
	
  SECTION 7.08.

  	
  Notice of Defaults

  	
  36

  
	
  SECTION 7.09.

  	
  Undertaking to Pay
  Costs

  	
  36

  
	
  SECTION 7.10.

  	
  Unconditional Right of
  Holders to Receive Principal, Premium and Interest

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8. CONCERNING THE TRUSTEE

  	
  37

  
	
  SECTION 8.01.

  	
  Duties and
  Responsibilities of Trustee

  	
  37

  
	
  SECTION 8.02.

  	
  Reliance on Documents,
  Opinions, etc.

  	
  38

  
	
  SECTION 8.03.

  	
  No Responsibility for
  Recitals, etc.

  	
  39

  
	
  SECTION 8.04.

  	
  Trustee and Agents
  May Own Debt Securities

  	
  39

  
	
  SECTION 8.05.

  	
  Moneys to be Held in
  Trust

  	
  40

  
	
  SECTION 8.06.

  	
  Compensation and
  Expenses of Trustee

  	
  40

  
	
  SECTION 8.07.

  	
  Officers’ Certificate
  as Evidence

  	
  40

  
	
  SECTION 8.08.

  	
  Conflicting Interest of
  Trustee

  	
  41

  
	
  SECTION 8.09.

  	
  Eligibility of Trustee

  	
  41

  
	
  SECTION 8.10.

  	
  Resignation or Removal
  of Trustee

  	
  41

  
	
  SECTION 8.11.

  	
  Acceptance by Successor
  Trustee

  	
  42

  
	
  SECTION 8.12.

  	
  Succession by Merger,
  etc.

  	
  43

  
	
  SECTION 8.13.

  	
  Limitation on Rights of
  Trustee as a Creditor

  	
  44

  
	
  SECTION 8.14.

  	
  Authenticating Agents

  	
  44

  
	
  SECTION 8.15.

  	
  Preferential Collection
  of Claims Against the Company

  	
  46

  
	
  SECTION 8.16.

  	
  Trustee’s Application
  for Instructions from the Company

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9. CONCERNING THE HOLDERS

  	
  47

  
	
  SECTION 9.01.

  	
  Action by Holders

  	
  47

  



 


ii

















 


	
  SECTION 9.02.

  	
  Proof of Execution by
  Holders

  	
  47

  
	
  SECTION 9.03.

  	
  Who Are Deemed Absolute
  Owners

  	
  47

  
	
  SECTION 9.04.

  	
  Company-Owned Debt
  Securities Disregarded

  	
  47

  
	
  SECTION 9.05.

  	
  Revocation of Consents;
  Future Holders Bound

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10. SUPPLEMENTAL INDENTURES

  	
  48

  
	
  SECTION 10.01.

  	
  Supplemental Indentures
  without Consent of Holders

  	
  48

  
	
  SECTION 10.02.

  	
  Supplemental Indentures
  with Consent of Holders

  	
  50

  
	
  SECTION 10.03.

  	
  Effect of Supplemental
  Indentures

  	
  51

  
	
  SECTION 10.04.

  	
  Notation on Debt
  Securities

  	
  51

  
	
  SECTION 10.05.

  	
  Evidence of Compliance
  of Supplemental Indenture to be Furnished Trustee

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11. CONSOLIDATION, MERGER, SALE AND CONVEYANCE

  	
  51

  
	
  SECTION 11.01.

  	
  Company
  May Consolidate, etc., on Certain Terms

  	
  51

  
	
  SECTION 11.02.

  	
  Successor Entity to be
  Substituted

  	
  52

  
	
  SECTION 11.03.

  	
  Opinion of Counsel to
  Be Given Trustee

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12. SATISFACTION AND DISCHARGE OF INDENTURE

  	
  52

  
	
  SECTION 12.01.

  	
  Satisfaction, Discharge
  and Defeasance of Debt Securities of any Series

  	
  52

  
	
  SECTION 12.02.

  	
  Defeasance of Debt
  Securities of any Series

  	
  54

  
	
  SECTION 12.03.

  	
  Application of Trust
  Funds; Indemnification

  	
  55

  
	
  SECTION 12.04.

  	
  Return of Unclaimed
  Moneys

  	
  56

  
	
  SECTION 12.05.

  	
  Reinstatement

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  56

  
	
  SECTION 13.01.

  	
  Indenture and Debt
  Securities Solely Obligations of the Company

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14. MISCELLANEOUS PROVISIONS

  	
  57

  
	
  SECTION 14.01.

  	
  Provisions Binding on
  Successors of the Company

  	
  57

  
	
  SECTION 14.02.

  	
  Indenture for Sole
  Benefit of Parties and Holders of Debt Securities

  	
  57

  
	
  SECTION 14.03.

  	
  Addresses for Notices,
  etc.

  	
  57

  
	
  SECTION 14.04.

  	
  New York Contract;
  Waiver of Jury Trial

  	
  57

  
	
  SECTION 14.05.

  	
  Evidence of Compliance
  with Conditions Precedent

  	
  57

  
	
  SECTION 14.06.

  	
  Legal Holidays

  	
  58

  
	
  SECTION 14.07.

  	
  Trust Indenture Act of
  1939 to Control

  	
  58

  
	
  SECTION 14.08.

  	
  Table of Contents,
  Headings, etc.

  	
  58

  
	
  SECTION 14.09.

  	
  Determination of
  Principal Amount

  	
  58

  
	
  SECTION 14.10.

  	
  Execution in
  Counterparts

  	
  59

  
	
  SECTION 14.11.

  	
  Force Majeure

  	
  59

  
	
  SECTION 14.12.

  	
  U.S.A. Patriot Act

  	
  59

  



 


iii

















 


	
  ARTICLE
  15. SUBORDINATION OF DEBT SECURITIES

  	
  59

  
	
  SECTION 15.01.

  	
  Debt Securities
  Subordinated to Senior Indebtedness

  	
  59

  
	
  SECTION 15.02.

  	
  Subrogation

  	
  61

  
	
  SECTION 15.03.

  	
  Obligation of the
  Company Unconditional

  	
  61

  
	
  SECTION 15.04.

  	
  Payments on Debt
  Securities Permitted

  	
  62

  
	
  SECTION 15.05.

  	
  Effectuation of
  Subordination by Trustee

  	
  62

  
	
  SECTION 15.06.

  	
  Trustee Has No
  Fiduciary Duty to Holders of Senior Indebtedness; Knowledge of Trustee

  	
  62

  
	
  SECTION 15.07.

  	
  Trustee May Hold
  Senior Indebtedness

  	
  63

  
	
  SECTION 15.08.

  	
  Rights of Holders of
  Senior Indebtedness Not Impaired

  	
  63

  
	
  SECTION 15.09.

  	
  Reliance on Judicial
  Order or Certificate of Liquidating Agent

  	
  63

  
	
  SECTION 15.10.

  	
  Defeasance

  	
  63

  
	
   

  	
   

  	
   

  
	
  Signatures

  	
   

  	
  64

  
	
  Acknowledgments

  	
   

  	
  64

  



 


iv

















 


CROSS REFERENCE SHEET


 


Between


 


Provisions of Sections 310 through 318(a) inclusive of Trust
Indenture Act of 1939 and the Indenture dated as of                       ,
2010, between The Manitowoc Company, Inc. and                                                       ,
a national banking association, as trustee.


 


	
  Section
  of Act

  	
   

  	
  Section of Indenture

  	
   

  
	
  310(a)(1) and (2)

  	
   

  	
  8.09

  	
   

  
	
  310(a)(3) and (4)

  	
   

  	
  *

  	
   

  
	
  310(b)

  	
   

  	
  8.08 and 8.10

  	
   

  
	
  310(c)

  	
   

  	
  *

  	
   

  
	
  311(a)

  	
   

  	
  8.13

  	
   

  
	
  311(b)

  	
   

  	
  8.13

  	
   

  
	
  311(c)

  	
   

  	
  *

  	
   

  
	
  312(a)

  	
   

  	
  6.01 and 6.02(a)

  	
   

  
	
  312(b)

  	
   

  	
  6.02(b)

  	
   

  
	
  312(c)

  	
   

  	
  6.02(c)

  	
   

  
	
  313(a)(1), (2), (3),
  (4), (6) and (7)

  	
   

  	
  6.04(a)

  	
   

  
	
  313(a)(5)

  	
   

  	
  *

  	
   

  
	
  313(b)(1)

  	
   

  	
  *

  	
   

  
	
  313(b)(2)

  	
   

  	
  6.04

  	
   

  
	
  313(c)

  	
   

  	
  6.04

  	
   

  
	
  313(d)

  	
   

  	
  6.04

  	
   

  
	
  314(a)(1)

  	
   

  	
  6.03

  	
   

  
	
  314(a)(2)

  	
   

  	
  6.03

  	
   

  
	
  314(a)(3)

  	
   

  	
  6.03

  	
   

  
	
  314(b)

  	
   

  	
  *

  	
   

  
	
  314(c)(1)

  	
   

  	
  5.05

  	
   

  
	
  314(c)(2)

  	
   

  	
  14.05

  	
   

  
	
  314(c)(3)

  	
   

  	
  *

  	
   

  
	
  314(d)

  	
   

  	
  *

  	
   

  
	
  314(e)

  	
   

  	
  14.05

  	
   

  
	
  314(f)

  	
   

  	
  *

  	
   

  
	
  315(a), (c) and (d)

  	
   

  	
  8.01

  	
   

  
	
  315(b)

  	
   

  	
  7.08

  	
   

  
	
  315(e)

  	
   

  	
  7.09

  	
   

  
	
  316(a)(1)

  	
   

  	
  7.07

  	
   

  
	
  316(a)(2)

  	
   

  	
  *

  	
   

  
	
  316(a) last para.

  	
   

  	
  9.04

  	
   

  
	
  316(b)

  	
   

  	
  7.10

  	
   

  
	
  317(a)

  	
   

  	
  7.02

  	
   

  
	
  317(b)

  	
   

  	
  5.04

  	
   

  
	
  318(a)

  	
   

  	
  14.07

  	
   

  



 






* Not Applicable.


 


This cross reference sheet shall not, for any purpose, be considered
part of the Indenture.


 


v
















 


THIS INDENTURE, dated as of
                    ,
2010, between The Manitowoc Company, Inc., a Wisconsin corporation (the “Company”),
and
                                                      ,
a national banking association, as trustee (the “Trustee”).


 


RECITALS OF THE
COMPANY


 


The Company has duly authorized the execution and
delivery of this Indenture to provide for the issue from time to time of its
unsecured subordinated debentures, notes, bonds or other evidences of
indebtedness to be issued in one or more series as in this Indenture provided,
up to such principal amount or amounts as may from time to time be authorized
in or pursuant to one or more resolutions of the Board of Directors.


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration of the premises and the
purchase or acceptance of the Debt Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of the
respective Holders from time to time of the Debt Securities or of any series
thereof as follows:


 


ARTICLE
1.

DEFINITIONS


 


SECTION 1.01.      Definitions.  The terms
defined in this Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939 or which are by
reference therein defined in the Securities Act of 1933, as amended, shall have
(except as herein otherwise expressly provided or unless the context otherwise
requires) the meanings assigned to such terms in said Trust Indenture Act of
1939 and in said Securities Act as in force at the date of the execution of
this Indenture. 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” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally accepted
in the United States for domestic companies at the date of such computation.
All references to such terms herein shall be both to the singular or the
plural, as the context so requires. Unless the context otherwise requires, any
reference to an “Article” or a “Section” refers to an Article or Section,
as the case may be, of this Indenture. 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. The words “including,”
“includes” and “include” shall be deemed to be followed by the words “without
limitation.”


 

















 


Affiliate:


 


“Affiliate” means, with respect to any specified
Person, any other Person who directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
such specified Person.  The term “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative of the foregoing.


 


Authenticating Agent:


 


The term “Authenticating Agent” means the agent of the
Trustee, if any, which at the time shall be appointed and acting pursuant to Section 8.14.


 


Board of Directors:


 


“Board of Directors” means, as to any Person, the
board of directors of such Person or any duly authorized committee thereof or,
with respect to any Person that is not a corporation, the Person or Persons
performing corresponding functions.


 


Board Resolution:


 


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


 


Business Day:


 


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


 


Capital Stock:


 


“Capital Stock” means:


 


(i)            with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class
of Common Stock and Preferred Stock of such Person; and


 


with respect to any Person that is not a corporation,
any and all partnership, membership or other equity interests of such Person.


 


Commission:


 


The term “Commission” means the U.S. Securities and
Exchange Commission.


 


2

















 


Common Stock:


 


“Common Stock” of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person’s common stock, and includes,
without limitation, all series and classes of such common stock.


 


Company:


 


“Company” means the party named as the “Company” in
the first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall mean such
successor. The forgoing sentence shall likewise apply to any subsequent such
successor or successors.


 


Company Request and Company Order:


 


The terms “Company Request” and “Company Order” mean,
respectively, a written request or order signed in the name of the Company by
its Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer or a Vice
President, and by its Treasurer, Secretary, Assistant Secretary or Assistant
Treasurer, and delivered to the Trustee.


 


Conversion Date:


 


The term “Conversion Date” has the meaning set forth
in Section 3.11:


 


Corporate Trust Office:


 


The term “Corporate Trust Office” means the office of
the Trustee at which, at any particular time, its corporate trust business
shall principally be administered, which office at the date hereof is located
at                                               
Attention:  Corporate Trust
Administration unit, or such other address as the Trustee may designate from
time to time by notice to the Company, or the principal corporate trust office
of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Company).


 


Currency Determination Agent:


 


The term “Currency Determination Agent” means the
financial institution, if any, from time to time selected by the Company for
purposes of Section 3.11.


 


Debt Security or Debt Securities:


 


The terms “Debt Security” or “Debt Securities” means
any unsecured notes, debentures or other indebtedness of any series, as the
case may be, issued by the Company from time to time, and authenticated and
delivered under this Indenture.


 


3

















 


Debt Security Register:


 


The term “Debt Security Register” has the meaning set
forth in Section 3.06.


 


Debt Security Registrar:


 


The term “Debt Security Registrar” has the meaning set
forth in Section 3.06.


 


Depository:


 


The term “Depository” means, unless otherwise
specified by the Company pursuant to Section 3.01, with respect to Debt
Securities of any series issuable or issued as a Global Debt Security, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934, as amended, or other applicable statute
or regulation.


 


Dollar:


 


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


 


Dollar Equivalent of the Foreign Currency:


 


The term “Dollar Equivalent of the Foreign Currency”
shall have the meaning set forth in Section 3.11.


 


Event of Default:


 


The term “Event of Default” has the meaning specified
in Section 7.01.


 


Foreign Currency:


 


The term “Foreign Currency” means a currency issued by
the government of any country other than the United States of America.


 


Global Debt Security:


 


The term “Global Debt Security” means a Debt Security
issued in global form pursuant to Section 2.04 hereof to evidence all or
part of a series of Debt Securities.


 


Government Obligations:


 


The term “Government Obligations” means securities which
are (i) direct obligations of the government which issued the currency in
which the Debt Securities of a series are denominated or (ii) obligations
of a person controlled or supervised by and acting as an agency or
instrumentality of the government which issued the currency in which the Debt
Securities of such series are denominated, the payment of which obligations is
unconditionally guaranteed by such government, and which, in either case, are
full faith and credit obligations of such 


 


4

















 


government, are denominated in the currency in which
the Debt Securities of such series are denominated and which are not callable
or redeemable at the option of the issuer thereof.


 


Holder:


 


The term “Holder” means any Person in whose name a
Debt Security of any series is registered in the Debt Security Register
applicable to Debt Securities of such series.


 


Indenture:


 


The term “Indenture” means this instrument as
originally executed and delivered or, if amended or supplemented as herein
provided pursuant to the applicable provisions hereof, as so amended or
supplemented.


 


Indexed Debt Security:


 


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


 


Interest:


 


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


 


Interest Payment Date:


 


The term “Interest Payment Date”, when used with
respect to any series of Debt Securities, means the Stated Maturity of an
installment of interest on such Debt Securities.


 


Market Exchange Rate:


 


The term “Market Exchange Rate” shall have the meaning
set forth in Section 3.11.


 


Officers’ Certificate:


 


The term “Officers’ Certificate”, when used with
respect to the Company, means a certificate signed by its Chairman of the
Board, Vice Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or a Vice President and by its
Treasurer, Secretary, Assistant Secretary or Assistant Treasurer and delivered
to the Trustee. Each such certificate shall include the statements provided for
in Section 14.05 to the extent required by the provisions of such Section.


 


Opinion of Counsel:


 


The term “Opinion of Counsel” means an opinion in
writing signed by legal counsel who may be an employee of or counsel to the Company
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
include the statements provided for in Sections 2.02, 3.04 and 14.05 to the
extent required by the provisions of such Sections.


 


5

















 


Original Issue Discount Debt Security:


 


The term “Original Issue Discount Debt Security” means
any Debt 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 7.01.


 


Outstanding:


 


The term “Outstanding”, when used with respect to Debt
Securities or Debt Securities of any series, means, as of the date of
determination, all such Debt Securities theretofore authenticated and delivered
under this Indenture, except:


 


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


 


(ii)           such Debt Securities for whose payment or redemption
money in the necessary amount and in the specified currency 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 Debt
Securities, provided, however, that if such Debt 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)          such Debt Securities in exchange for or in lieu of
which other such Debt Securities have been authenticated and delivered pursuant
to this Indenture, or such Debt Securities which have been paid, pursuant to
this Indenture, unless proof satisfactory to the Trustee is presented that any
such Debt Securities are held by Persons in whose hands any of such Debt
Securities are a legal, valid and binding obligation of the Company, and


 


(iv)          such Debt Securities the indebtedness in respect to
which has been discharged in accordance with Section 12.02.


 


provided, however, that in determining whether the Holders of the
requisite principal amount of such Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
such Debt Securities owned by the Company or any other obligor upon such Debt
Securities or any Affiliate of the Company or such other obligor (except in the
case in which the Company or such other obligor or Affiliate owns all Debt
Securities Outstanding under the Indenture, or all Outstanding Debt Securities
of each such series, as the case may be, without regard to this proviso) 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 or waiver, only such Debt Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Such Debt 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
Debt Securities and that the pledgee is not the Company or any other such
obligor upon such Debt Securities or any Affiliate of the Company or such other
obligor. In case of a dispute as to such right, the decision of the Trustee
upon the advice of counsel shall be full protection to the Trustee. The Company
shall furnish to the Trustee 


 


6

















 


promptly an Officers’ Certificate listing and
identifying all such Debt Securities, if any, known by the Company to be owned
or held by or for the account of any of the above described Persons; and,
subject to the provisions of Section 8.01, the Trustee shall be entitled
to accept such Officers’ Certificate as conclusive evidence of the facts
therein set forth and of the fact that all such Debt Securities not listed
therein are Outstanding for the purpose of any such determination.


 


Person:


 


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


 


Place of Payment:


 


The term “Place of Payment”, when used with respect to
the Debt Securities of any series, means the place or places where the
principal of (premium, if any) and interest on the Debt Securities of that
series are payable as specified in accordance with Section 3.01.


 


Predecessor Debt Security:


 


The term “Predecessor Debt Security” of any particular
Debt Security means every previous Debt Security evidencing all or a portion of
the same debt as that evidenced by such particular Debt Security, and for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 3.07 in lieu of a mutilated, lost, destroyed or stolen Debt
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Debt Security.


 


Preferred Stock:


 


“Preferred Stock” of any Person means any Capital
Stock of such Person that has preferential rights to any other Capital Stock of
such Person with respect to dividends or redemptions or upon liquidation.


 


Redemption Date:


 


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


 


Redemption Price:


 


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


 


7

















 


Regular Record Date:


 


The term “Regular Record Date” for the interest
payable on any Debt Security on any Interest Payment Date means the date
specified in such Debt Security as the “Regular Record Date” as contemplated by
Section 3.01.


 


Responsible Officer:


 


The term “Responsible Officer”, when used with respect
to the Trustee, means any officer of the Trustee located at the Corporate Trust
Office of the Trustee, who shall have direct responsibility for the
administration of this Indenture and, for the purposes of Section 7.07, Section 7.08
and Section 8.01(c)(2), shall also include any other officer of the
Trustee to whom any corporate trust matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.


 


The term “Responsible Officer”, when used with respect
to the Company, means the Chairman of the Board, Vice Chairman of the Board,
Chief Executive Officer, President, Chief Operating Officer, Chief Financial
Officer, Treasurer or Secretary, or any Vice President, Assistant Secretary or
Assistant Treasurer, in each case, of the Company.


 


Senior Indebtedness:


 


The term “Senior Indebtedness” means (i) the
principal of and premium, if any, and unpaid interest on indebtedness for money
borrowed, (ii) purchase money and similar obligations, (iii) obligations
under capital leases, (iv) guarantees, assumptions or purchase commitments
relating to, or other transactions as a result of which the Company is
responsible for the payment of, such indebtedness of others, (v) renewals,
extensions and refunding of any such indebtedness, (vi) interest or
obligations in respect of any such indebtedness accruing after the commencement
of any insolvency or bankruptcy proceedings; and (vii) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts, and similar
arrangements, unless, in each case, the instrument by which the Company
incurred, assumed or guaranteed the indebtedness or obligations described in
clauses (i) through (vii) hereof expressly provides that such
indebtedness or obligation is not senior in right of payment to the Debt
Securities.


 


Special Record Date:


 


The term “Special Record Date” for the payment of any
Defaulted Interest (as defined in Section 3.08) means a date fixed by the
Trustee pursuant to Section 3.08.


 


Stated Maturity:


 


The term “Stated Maturity” when used with respect to
any Debt Security or any installment of principal thereof or of interest
thereon, means the date specified in such Debt Security as the fixed date on
which the principal of such Debt Security, or such installment of interest, is
due and payable.


 


8
















 


Subsidiary:


 


“Subsidiary” with respect to any Person, means:


 


(i)            any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned, directly or
through another subsidiary, by such Person; or


 


(ii)           any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the time,
directly or through another subsidiary, owned by such Person.


 


Trustee:


 


“Trustee” means the party named as the “Trustee” in
the first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.


 


Trust Indenture Act of 1939:


 


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


 


Valuation Date:


 


The term “Valuation Date” shall have the meaning set
forth in Section 3.11.


 


Voting Stock:


 


The term “Voting Stock” means outstanding shares of
capital stock or similar equity interests having under ordinary circumstances
voting power for the election of directors, managers or the substantial
equivalent thereof whether at all times or only so long as no senior class of
stock or similar equity interest has such voting power by reason of the
happening of any contingency.


 


ARTICLE
2.

DEBT SECURITY FORMS.


 


SECTION 2.01.      Forms Generally. 
The Debt Securities of each series and the certificates of
authentication thereon shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture (the provisions of which shall be appropriate to reflect the terms of
each series of Debt Securities, including the currency or denomination, which
may be Dollars or Foreign Currency), and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be required to comply with the rules of any securities exchange, or
as may,


 


9

















 


consistently herewith, be determined by the officers
executing such Debt Securities, as evidenced by their signing of such Debt
Securities. Any portion of the text of any Debt Security may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Debt Security.


 


The definitive Debt Securities shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the officers executing
such Debt Securities, as evidenced by their signing of such Debt Securities.


 


SECTION 2.02.      Forms of Debt Securities. 
The Debt Securities of each series shall be in such form or forms
(including global form) as shall be established by or pursuant to a Board
Resolution.


 


Prior to the delivery of a Debt Security of any series
in any such form to the Trustee for the Debt Securities of such series for
authentication, the Company shall deliver to the Trustee the following:


 


(a)           The Board Resolution by or pursuant to
which such form of Debt Security has been approved;


 


(b)           An Officers’ Certificate dated the date
such Officers’ Certificate is delivered to the Trustee stating that all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of Debt Securities in such form have been complied
with; and


 


(c)           An Opinion of Counsel stating that Debt
Securities in such form, together with any coupons appertaining thereto, when (i)
completed by appropriate insertions and executed and delivered by the Company
to the Trustee for authentication in accordance with this Indenture, (ii) authenticated
and delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors, and (iii) sold in the manner specified in such Opinion
of Counsel, will be the legal, valid and binding obligations of the Company,
subject to applicable bankruptcy, reorganization, insolvency and other similar
laws generally affecting creditors’ rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Debt Securities.


 


The definitive Debt Securities and coupons, if any,
shall be printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner, all as determined by the
officers executing such Debt Securities or coupons, as evidenced by their
execution thereof.


 


SECTION 2.03.      Form of Trustee’s
Certificate of Authentication.  The following
is the form of the Certificate of Authentication of the Trustee to be endorsed
on the face of all Debt Securities substantially as follows:


 


This is one of the Debt Securities of the series
designated herein issued under the within-mentioned Indenture.


 


10

















 


	
   

  	
   

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized Officer

  



 


SECTION 2.04.      Debt Securities in Global Form.  (a) If
the Company shall establish pursuant to Section 3.01 that the Debt Securities
of a particular series are to be issued in whole or in part in the form of one
or more Global Debt Securities, then the Company shall execute and the Trustee
or its agent shall, in accordance with Section 3.04 and the Company Order
delivered to the Trustee or its agent thereunder, authenticate and deliver such
Global Debt Security or Global Debt Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Debt Security or Global Debt Securities, or such portion thereof as the Company
shall specify in a Company Order, (ii) shall be registered in the name of the
Depository for such Global Debt Security or Global Debt Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depository
or pursuant to the Depository’s instruction and (iv) shall bear a legend
substantially to the following effect: “Unless this certificate is presented by
an authorized representative of the Depository to the Company or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depository or in such other name
as is requested by an authorized representative of the Depository (and any
payment is made to the nominee of the Depository or to such other entity as is
requested by an authorized representative of the Depository), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, the nominee of the
Depository, has an interest herein.”


 


(b)           Notwithstanding any other provision of
this Section 2.04 or of Section 3.06, and subject to the provisions
of paragraph (c) below, unless the terms of a Global Debt Security expressly permit
such Global Debt Security to be exchanged in whole or in part for individual
certificates representing Debt Securities, a Global Debt Security may be
transferred, in whole but not in part and in the manner provided in Section 3.06,
only to a nominee of the Depository for such Global Debt Security, or to the
Depository, or a successor Depository for such Global Debt Security selected or
approved by the Company, or to a nominee of such successor Depository.


 


(c)           (1) If at any time the Depository
for a Global Debt Security notifies the Company that it is unwilling or unable
to continue as Depository for such Global Debt Security or if at any time the
Depository for the Global Debt Securities for such series shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor Depository with respect to such Global Debt Security. If a successor
Depository for such Global Debt Security is not appointed by the Company within
90 days after the Company receives notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of
certificates representing Debt Securities of such series in exchange for such
Global Debt Security, will authenticate and deliver, certificates


 


11

















 


representing
Debt Securities of such series of like tenor and terms in an aggregate
principal amount equal to the principal amount of the Global Debt Security in
exchange for such Global Debt Security.


 


(2)           If specified by the Company pursuant to Section 3.01
with respect to Debt Securities issued or issuable in the form of a Global Debt
Security, the Depository for such Global Debt Security may surrender such
Global Debt Security in exchange in whole or in part for certificates
representing Debt Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and such
Depository. Thereupon the Company shall execute, and the Trustee or its agent
shall authenticate and deliver, without a service charge, (A) to each
Holder specified by the Debt Security Registrar or the Depository a certificate
or certificates representing Debt Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such person in an
aggregate principal amount equal to and in exchange for such Holder’s
beneficial interest as specified by the Debt Security Registrar or the
Depository in the Global Debt Security; and (B) to such Depository a new
Global Debt Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Debt Security and the aggregate principal amount of
certificates representing Debt Securities delivered to Holders thereof.


 


(3)           In any exchange provided for in any of
the preceding three paragraphs, the Company will execute and the Trustee or its
agent will authenticate and deliver certificates representing Debt Securities
in definitive registered form in authorized denominations for Debt Securities
of the same series or any integral multiple thereof. Upon the exchange of the
entire principal amount of a Global Debt Security for certificates representing
Debt Securities, such Global Debt Security shall be cancelled by the Trustee or
its agent. Except as provided in the preceding paragraph, certificates
representing Debt Securities issued in exchange for a Global Debt Security
pursuant to this Section shall be registered in such names and in such
authorized denominations for Debt Securities of that series or any integral
multiple thereof, as the Debt Security Registrar or Depository shall instruct
the Trustee or its agent. The Trustee or the Debt Security Registrar shall
deliver at its Corporate Trust Office such certificates representing Debt
Securities to the Holders in whose names such Debt Securities are so registered.


 


ARTICLE
3.

THE DEBT SECURITIES.


 


SECTION 3.01.      Title and Terms. 
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.


 


The Debt Securities may be issued in one or more
series. All Debt Securities of each series issued under this Indenture shall in
all respects be equally and ratably entitled to the benefits hereof with
respect to such series without preference, priority or distinction on account
of the actual time or times of the authentication and delivery or maturity of
the Debt Securities of such series. There shall be established in or pursuant
to a Board Resolution, and set forth in an


 


12

















 


Officers’ Certificate to the extent not established in
a Board Resolution, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:


 


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


 


(b)           any limit upon the aggregate principal
amount of the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of that series pursuant to this Article Three, the
second paragraph of Section 4.03, or Section 10.04);


 


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


 


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


 


(e)           the Place of Payment;


 


(f)            the period or periods within which, the
price or prices at which, the currency or currency units in which, and the
terms and conditions upon which Debt Securities of the series may be redeemed,
in whole or in part, at the option of the Company;


 


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


 


(h)           the denominations in which the Debt
Securities of such series shall be issuable if other than denominations of
$2,000 and integral multiples of $1,000 in excess thereof;


 


(i)            if other than Dollars, the currencies in
which payments of interest or principal of (and premium, if any, with respect
to) the Debt Securities of the series are to be made;


 


(j)            if the interest on or principal of (or
premium, if any, with respect to) the Debt Securities of the series are to be
payable, at the election of the Company or a Holder thereof or otherwise, in a
currency other than that in which such Debt Securities are payable, the period
or periods within which, and the other terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange rate
between the currency in such Debt Securities are denominated or stated to be
payable and the currency in which such Debt Securities or any of them are to be
so payable;


 


(k)           whether the amount of payments of
interest on or principal of (or premium, if any, with respect to) the Debt
Securities of such series may be determined with reference to an index,


 


13

















 


formula
or other method (which index, formula or method or method may be based, without
limitation, on one or more currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;


 


(l)            the extent to which any Debt Securities
will be issuable in permanent global form, the manner in which any payments on
a permanent global Debt Security will be made, and the appointment of any
Depository relating thereto;


 


(m)          any deletions from, modifications of or
additions to the Events of Default or covenants with respect to the Debt
Securities of such series, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth herein;


 


(n)           if any of the Debt Securities of such
series are to be issuable upon the exercise of warrants, this shall be so
established as well as the time, manner and place for such Debt Securities to
be authenticated and delivered;


 


(o)           any applicable CUSIP numbers;


 


(p)           whether the Debt Securities will be
guaranteed by any of the Company’s Subsidiaries and the terms of any
guarantees;


 


(q)           whether and upon what terms the Debt
Securities will be convertible into or exchangeable for other securities or
other properties; and


 


(r)            any other terms of the series (which
terms shall not be inconsistent with the provisions of this Indenture).


 


All Debt Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise
be provided in or pursuant to such Board Resolution and set forth in such
Officers’ Certificate or in any such indenture supplemental hereto.


 


SECTION 3.02.      Denominations. 
The Debt Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated in Section 3.01.
In the absence of any specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations
of $2,000 and integral multiples of $1,000 in excess thereof, which may be in
Dollars or any Foreign Currency.


 


SECTION 3.03.      Payment of Principal and Interest. 
The principal of, premium, if any, and interest on the Debt Securities
shall be payable at the office or agency of the Company designated for that
purpose in the Place of Payment, as provided in Section 5.02; provided,
however, that interest may be payable at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Debt Security Register on the Regular Record Date for such
interest payment.


 


SECTION 3.04.      Execution of Debt Securities. 
The Debt Securities shall be executed manually or by facsimile in the
name and on behalf of the Company by its Chairman of


 


14

















 


the Board of Directors, its President, one of its Vice
Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries. Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, manually
executed by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or become obligatory for any purpose. Such certificate by the Trustee
upon any Debt Security executed by the Company shall be conclusive evidence
that the Debt Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.


 


In case any officer of the Company who shall have
executed any of the Debt Securities shall cease to be such officer before the
Debt Securities so executed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debt Securities nevertheless shall
be valid and binding and may be authenticated and delivered or disposed of as
though the Person who executed such Debt Securities had not ceased to be such
officer of the Company; and any Debt Securities may be executed on behalf of
the Company by such Persons as, at the actual date of the execution of such
Debt Security, shall be the proper officers of the Company, although at the
date of such Debt Security or of the execution of this Indenture any such
Person was not such an officer.


 


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Debt Securities of any
series, properly created in accordance with Section 3.01 and executed by
the Company, to the Trustee for authentication; and the Trustee shall
authenticate and deliver such Debt Securities upon receipt of a Company Order.
In the event that any other Person performs the Trustee’s duties as
Authenticating Agent pursuant to a duly executed agreement, the Company shall
notify the Trustee in writing of the issuance of any Debt Securities hereunder,
such notice to be delivered in accordance with the provisions of Section 14.03
on the date such Debt Securities are delivered by the Company for
authentication to such other Person.


 


Prior to any such authentication and delivery, the
Trustee shall receive, and shall be fully protected in conclusively relying
upon, in addition to the Opinion of Counsel to be furnished to the Trustee
pursuant to Sections 2.02 and 14.05 and the Officers’ Certificate relating to
the issuance of any series of Debt Securities pursuant to Sections 14.05 and
3.01, Opinions of Counsel stating that:


 


(a)           all instruments furnished to the Trustee
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt
Securities;


 


(b)           all laws and requirements with respect to
the form and execution by the Company of the supplemental indenture, if any,
have been complied with, the execution and delivery of the supplemental
indenture, if any, will not violate the terms of this Indenture, the
supplemental indenture has been duly qualified under the Trust Indenture Act of
1939, the Company has corporate or company power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms (subject, as to enforcement of
remedies, to


 


15

















 


applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally and general equitable principles from time to time
in effect and to such other qualifications as such counsel shall conclude do
not materially affect the rights of Holders of such Debt Securities);


 


(c)           the form and terms of such Debt
Securities have been established in conformity with the provisions of this
Indenture; and


 


(d)           all laws and requirements with respect to
the execution and delivery by the Company of such Debt Securities have been
complied with, the authentication and delivery of the Debt Securities by the
Trustee will not violate the terms of this Indenture, the Company has the
corporate or company power to issue such Debt Securities and such Debt
Securities, assuming due authentication and delivery by the Trustee, constitute
legal, valid and binding obligations of the Company in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors’
rights generally and general equitable principles from time to time in effect
and to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Debt Securities) and are
entitled to the benefits of this Indenture, equally and ratably with all other
Outstanding Debt Securities, if any, of such series.


 


The Trustee shall not be required to authenticate such
Debt Securities if the issue thereof will adversely affect the Trustee’s own
rights, duties or immunities under the Debt Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee or such
action would expose the Trustee to personal liability to existing Holders.


 


Unless otherwise provided in the form of Debt Security
for any series, all Debt Securities shall be dated the date of their authentication.


 


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


 


SECTION 3.05.      Temporary Debt Securities. 
Pending the preparation of definitive Debt Securities of any series, the
Company may execute, and upon receipt of the documents required by Sections
2.02, 3.01 and 3.04, together with a Company Order, the Trustee shall
authenticate and deliver, such temporary Debt Securities which may be printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denominations, substantially of the tenor of such definitive Debt
Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
temporary Debt Securities may determine, as evidenced by their execution of
such temporary Debt Securities.


 


If temporary Debt Securities of any series are issued,
the Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt Securities
of any series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series, upon surrender of
the temporary Debt Securities of such series at any office or agency maintained
by the Company for such purposes as provided in Section 5.02, without
charge to the Holder. Upon surrender for cancellation of any


 


16

















 


one or more temporary Debt Securities of any series,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore a like principal amount of definitive Debt Securities of
such series having the same interest rate and Stated Maturity and bearing
interest from the same date of any authorized denominations. Until so exchanged
the temporary Debt Securities of such series shall in all respects be entitled
to the same benefits under this Indenture as definitive Debt Securities of such
series.


 


SECTION 3.06.      Exchange and Registration of
Transfer of Debt Securities.  Debt
Securities may be exchanged for a like aggregate principal amount of Debt
Securities of such series that are of other authorized denominations. Debt
Securities to be exchanged shall be surrendered at any office or agency to be
maintained for such purpose by the Company, as provided in Section 5.02, and
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore the Debt Security or Debt Securities of authorized
denominations which the Debt Security Holder making the exchange shall be
entitled to receive. Each agent of the Company appointed pursuant to Section 5.02
as a person authorized to register and register transfer of Debt Securities is
sometimes herein referred to as a “Debt Security Registrar.”


 


The Company shall keep, at each such office or agency
of the Company maintained for such purpose, as provided in Section 5.02, a
register for each series of Debt Securities hereunder (the registers of all
Debt Security Registrars being herein sometimes collectively referred to as the
“Debt Security Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Debt
Securities and shall register the transfer of Debt Securities as provided in
this Article Three. At all reasonable times, such Debt Security Register shall
be open for inspection by the Trustee and any Debt Security Registrar other
than the Trustee. Upon due presentment for registration of transfer of any Debt
Security at any such office or agency, the Company shall execute and register
and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Debt Security or Debt Securities of authorized denominations
for an equal aggregate principal amount. Registration or registration of
transfer of any Debt Security by any Debt Security Registrar in the registry
books maintained by such Debt Security Registrar, and delivery of such Debt
Security, duly authenticated, shall be deemed to complete the registration or
registration of transfer of such Debt Security.


 


The Company will at all times designate one Person
(who may be the Company and who need not be a Debt Security Registrar) to act
as repository of a master list of names and addresses of Holders of the Debt
Securities. The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Company to the Trustee and each
Debt Security Registrar, designated by the Company to act as such. The Company
shall cause each Debt Security Registrar to furnish to such repository, on a
current basis, such information as such repository may reasonably request as to
registrations, transfers, exchanges and other transactions effected by such
registrar, as may be necessary or advisable to enable such repository to
maintain such master list on as current a basis as is reasonably practicable.


 


No Person shall at any time be appointed as or act as
a Debt Security Registrar unless such Person is at such time empowered under
applicable law to act as such and duly registered to act as such under and to
the extent required by applicable law and regulations.


 


17

















 


All Debt Securities presented to a Debt Security
Registrar for registration of transfer shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and such Debt Security Registrar duly executed by
the registered Holder or such Holder’s attorney duly authorized in writing.


 


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


 


The Company shall not be required to issue, exchange
or register a transfer of (a) any Debt Securities of any series for a
period of 15 days next preceding the mailing of a notice of redemption of Debt
Securities of such series and ending at the close of business on the day of the
mailing of a notice of redemption of Debt Securities of such series so selected
for redemption, or (b) any Debt Securities selected, called or being called for
redemption except, in the case of any Debt Security to be redeemed in part, the
portion thereof not so to be redeemed.


 


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


 


None of the Trustee, any agent of the Trustee, any
paying agent or the Company will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Debt Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.


 


SECTION 3.07.      Mutilated, Destroyed, Lost or
Stolen Debt Securities.  In case any temporary or
definitive Debt Security shall become mutilated or be destroyed, lost or
stolen, the Company in its discretion may execute, and upon a Company Request
the Trustee shall authenticate and deliver, a new Debt Security, bearing a
number, letter or other distinguishing mark not contemporaneously Outstanding,
in exchange and substitution for the mutilated Debt Security, or in lieu of and
in substitution for the Debt Security so destroyed, lost or stolen. In every
case the applicant for a substituted Debt Security shall furnish to the Company
and to the Trustee such security or indemnity that is sufficient in the
judgment of (i) the Trustee to protect the Trustee; and (ii) the Company to
protect the Company, the Trustee, any Agent and any authenticating agent, from
any destruction, loss or theft that any of them may suffer if a Note is replaced.
The applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft, of such Debt Security and
of the ownership thereof.


 


In the absence of notice to the Trustee or the Company
that such Debt Security has been acquired by a bona fide purchaser, the Trustee
shall authenticate any such substituted Debt Security and deliver the same upon
any Company Request. Upon the issuance of any substituted Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Debt Security, pay or authorize
the payment of the same (without surrender thereof


 


18
















 


except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as may be required by them to save each of them
harmless and, in case of destruction, loss or theft, evidence satisfactory to
the Company and to the Trustee of the destruction, loss or theft of such Debt
Security and of the ownership thereof.


 


Every substituted Debt Security issued pursuant to the provisions of
this Section 3.07 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debt Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities
duly issued hereunder. All Debt Securities shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities and shall preclude (to the extent permitted by law) any and all
other rights or remedies with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.


 


SECTION 3.08.      Payment of Interest; Interest
Rights Preserved.  Interest which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, on any Debt Security,
shall unless otherwise provided in such Debt Security be paid to the Person in
whose name the Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on the Regular Record Date for such
interest.


 


Unless otherwise stated in the form of Debt Security of a series,
interest on the Debt Securities of any series shall be computed on the basis of
a 360 day year comprised of twelve 30 day months.


 


Any interest on any Debt Security 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
registered 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 any such Debt Securities
(or their respective Predecessor Debt 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 Debt Security 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


 


19

















 


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 therefore to be
mailed, first-class postage prepaid, to each Holder of such Debt Securities, at
such Holder’s address as it appears in the Debt Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefore having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Debt Securities (or their respective Predecessor Debt
Securities) are registered 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 in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debt Securities of that
series may be listed, and upon such notice as may be required by such exchange,
if , after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by the Trustee.


 


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


 


SECTION 3.09.      Persons Deemed Owners. 
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Debt Security is registered as the owner of
such Debt Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.08) interest on, such Debt
Security and for all other purposes whatsoever whether or not such Debt
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 3.10.      Cancellation of Debt Securities
Paid, etc.  All Debt Securities surrendered for the
purpose of payment, redemption, exchange or registration of transfer or
delivered in satisfaction in whole or in part of any sinking fund obligation
shall, if surrendered to the Company or any agent of the Trustee or the Company
under this Indenture, be delivered to the Trustee and promptly cancelled by it,
or, if surrendered to the Trustee, shall be promptly cancelled by it, and no
Debt Securities shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall dispose of
cancelled Debt Securities in accordance with its customary procedures.


 


SECTION 3.11.      Currency and Manner of Payments.  (a) 
With respect to Debt Securities denominated in Dollars or a Foreign Currency,
the following payment provisions shall apply:


 


(1)           Except as provided in subparagraph (a)(2)
or in paragraph (c) of this Section 3.11, payment of principal of and premium,
if any, on any Debt Securities will be made at the offices established pursuant
to Section 5.02 by delivery of a check in the currency in which the Debt
Security is denominated on the payment date against surrender of such Debt
Security, and any interest on any Debt Security will be paid at such office by
mailing a check in the currency in 


 


20

















 


which
the Debt Securities were issued to the Person entitled thereto at the address
of such Person appearing on the Debt Security Register.


 


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


 


(b)           Not later than the fourth Business Day
after the Regular Record Date for such Interest Payment Date, the paying agent
will deliver to the Company a written notice specifying, in the currency in
which each series of the Debt Securities are denominated, the respective
aggregate amounts of principal of and premium, if any, and interest on the Debt
Securities to be made on such payment date, specifying the amounts so payable
in respect of the Debt Securities. The failure of the paying agent to deliver
such notice shall not relieve the Company from its obligation to make all
payments with respect to any Debt Security when due.


 


(c)           If the Foreign Currency in which any of the
Debt Securities are denominated ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, then with
respect to each date for the payment of Foreign Currency occurring after the
last date on which the Foreign Currency was so used (the “Conversion Date”),
the Dollar shall be the currency of payment for use on each such Interest
Payment Date. The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any paying agent to the Holder of such Debt Securities with
respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency as determined by the Currency Determination Agent as of the second
Business Day preceding the applicable payment date (the “Valuation Date”) in
the manner provided in paragraph (d).


 


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


 


(e)           The “Market Exchange Rate” shall mean,
for any currency, the highest firm bid quotation for U.S. dollars received by
the Currency Determination Agent at approximately 11:00 a.m., New York
City time, on the second Business Day preceding the applicable payment date
(or, if no such rate is quoted on such date, the last date on which such rate
was quoted), from three recognized foreign exchange dealers in the City of New
York selected by the Currency Determination Agent and approved by the Company
(one of which may be the Currency Determination Agent) for the purchase by the
quoting dealer, for settlement on such payment date, of the aggregate amount of
such currency payable on such payment in respect of all Notes denominated in
such currency.


 


(f)            All decisions and determinations of the
Currency Determination Agent regarding the Dollar Equivalent of the Foreign
Currency and the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company and all Holders of the Debt Securities. In
the event that the Foreign Currency ceases to be used both by the government of
the country which issued such currency and for the settlement of transactions
by public institutions of or within the international


 


21

















 


banking
community, the Company, after learning thereof, will promptly give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 14.03 to the Holders) specifying
the Conversion Date.


 


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


 


(h)           If the principal of (and premium, if any)
and interest on any Debt Securities is payable in a Foreign Currency and such
Foreign Currency is not available for payment due to the imposition of exchange
controls or other circumstances beyond the control of the Company, then the
Company shall be entitled to satisfy its obligations to Holders under this
Indenture by making such payment in Dollars on the basis of the Market Exchange
Rate for such Foreign Currency on the latest date for which such rate was
established on or before the date on which payment is due. Any payment made
pursuant to this Section 3.11 in Dollars where the required payment is in
a Foreign Currency shall not constitute a default or Event of Default under
this Indenture.


 


SECTION 3.12.      CUSIP Numbers. 
The Company in issuing the Debt Securities may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee
in writing of any change in the “CUSIP” numbers.


 


ARTICLE
4.

REDEMPTION OF DEBT SECURITIES; SINKING FUNDS.


 


SECTION 4.01.      Applicability of Article. 
The Company may reserve the right to redeem and pay before Stated
Maturity all or any part of the Debt Securities of any series, either by
optional redemption, sinking fund (mandatory or optional) or otherwise, by
provision therefor in the form of Debt Security for such series on such terms
as are specified in such form or the Board Resolution or Officers’ Certificate
delivered pursuant to Section 3.01 or the indenture supplemental hereto as
provided in Section 3.01 with respect to Debt Securities of such series.
Redemption of Debt Securities of any series shall be made in accordance with
the terms of such Debt Securities and, to the extent that this Article does
not conflict with such terms, in accordance with this Article.


 


SECTION 4.02.      Notice of Redemption; Selection
of Debt Securities.  In case the Company shall desire to exercise
the right to redeem all, or, as the case may be, any part of a series of Debt
Securities pursuant to Section 4.01, the Company shall fix a date for redemption
and the Company, or, upon Company Order, the Trustee in the name of and at the
expense of the Company, shall deliver a notice of such redemption at least 30
and not more than 60 days prior to the date fixed for redemption to the Holders
of Debt Securities so to be redeemed as a whole or in part. In any case,
failure to give such notice or any defect in the notice to the Holder


 


22

















 


of any Debt Security designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debt Security.


 


Notice of redemption shall be given in the name and at the expense of
the Company and shall specify the date fixed for redemption, the Redemption
Price at which Debt Securities of any series are to be redeemed, the place of
payment (which shall be at the offices or agencies to be maintained by the
Company pursuant to Section 5.02), that payment of the Redemption Price
will be made upon presentation and surrender of such Debt Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue, and the Section of this Indenture
pursuant to which Debt Securities will be redeemed. In case less than all Debt
Securities of any series are to be redeemed, the notice of redemption shall
also identify the particular Debt Securities to be redeemed as a whole or in
part and shall state that the redemption is for the sinking fund, if such is
the case. In case any Debt Security is to be redeemed in part only, the notice
of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, in the case of a physical Debt Security a new
Debt Security or Debt Securities of such series in aggregate principal amount
equal to the unredeemed portion thereof will be issued without charge to the
Holder.


 


If the Debt Securities of any series are to be redeemed, the Company
shall give the Trustee notice, at least 45 days (or such shorter period
acceptable to the Trustee) in advance of the date fixed for redemption, as to
the aggregate principal amount of Debt Securities to be redeemed. Debt
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Debt Securities of such series or any multiple thereof.
Thereupon the Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof to be
redeemed, and shall as promptly as practicable notify the Company of the Debt
Securities or portions thereof so selected. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Debt Securities of any series shall relate, in the case of any
Debt Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security which has been or is to be redeemed.


 


On or prior to 10:00 a.m., New York City time, the date fixed for
redemption specified in the notice of redemption given as provided in this Section
4.02, the Company will deposit with the Trustee or with the paying agent an
amount of money in the currency in which the Debt Securities of such series are
payable sufficient to redeem on the date fixed for redemption all the Debt
Securities so called for redemption at the appropriate Redemption Price,
together with accrued interest to the date fixed for redemption.


 


The Trustee shall not mail any notice of redemption of any series of
Debt Securities during the continuation of any default in payment of interest
on any series of Debt Securities when due or of any Event of Default, except
that where notice of redemption with respect to any series of Debt Securities
shall have been mailed prior to the occurrence of such default or Event of
Default, the Trustee shall redeem such Debt Securities provided funds are
deposited with it for such purpose.


 


23

















 


SECTION 4.03.      Payment of Debt Securities Called
for Redemption.  If notice of redemption has been given as
herein provided, the Debt Securities or portions of Debt Securities with
respect to which such notice has been given shall become due and payable on the
date and at the place stated in such notice at the applicable Redemption Price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Company shall default in the payment of such Debt
Securities or portions thereof at the Redemption Price, together with interest
accrued to said date) interest on the Debt Securities or portions of Debt
Securities so called for redemption shall cease to accrue, and such Debt
Securities and portions of Debt Securities shall be deemed not to be
Outstanding hereunder and shall not be entitled to any benefit under this
Indenture except to receive payment of the Redemption Price, together with
accrued interest to the date fixed for redemption. On presentation and
surrender of such Debt Securities at the place of payment in said notice
specified, the said Debt Securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable Redemption Price, together
with interest accrued thereon to the date fixed for redemption; provided,
however, that any installments of interest becoming due on the date fixed for
redemption shall be payable to the Holders of such Debt Securities, or one or
more previous Debt Securities evidencing all or a portion of the same debt as
that evidenced by such particular Debt Securities, registered as such on the
relevant record dates according to their terms and the provisions of Section 3.08.


 


Upon presentation and surrender of any Debt Security redeemed in part
only, with, if the Company or the Trustee so required, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company,
a new Debt Security or Debt Securities of the same series having the same
interest rate and Stated Maturity and bearing interest from the same date, of
any authorized denominations as requested by such Holder, in aggregate
principal amount equal to the unredeemed portion of the Debt Security so presented
and surrendered.


 


SECTION 4.04.      Exclusion of Certain Debt
Securities from Eligibility for Selection for Redemption. 
Debt Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
Company Order delivered to a Responsible Officer of the Trustee at least 45
days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Company or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company.


 


SECTION 4.05.      Provisions with Respect to any
Sinking Funds.  Unless the form or terms of any series of
Debt Securities shall provide otherwise, in lieu of making all or any part of
any mandatory sinking fund payment with respect to such series of Debt
Securities in cash, the Company may at its option (a) deliver to the Trustee
for cancellation any Debt Securities of such series theretofore acquired by the
Company, or (b) receive credit for any Debt Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to
the Trustee for cancellation, then Debt Securities so delivered or credited
shall be credited at the applicable sinking fund Redemption Price with respect
to the Debt Securities of such series.


 


24

















 


On or before the 45th day next preceding each sinking fund Redemption
Date, the Company will deliver to the Trustee an Officers’ Certificate or
Company Order specifying (i) the portion of the mandatory sinking fund
payment to be satisfied by deposit of cash in the currency in which the Debt
Securities of such series are payable, by delivery of Debt Securities
theretofore purchased or otherwise acquired by the Company (which Debt
Securities shall accompany such certificate) and by credit for Debt Securities
acquired by the Company and theretofore delivered to the Trustee for
cancellation redeemed by the Company and stating that the credit to be applied
has not theretofore been so applied and (ii) whether the Company intends
to exercise its right, if any, to make an optional sinking fund payment, and,
if so, the amount thereof. Such certificate shall also state that no Event of
Default has occurred and is continuing. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In case of the failure of the Company on or before the 45th
day next preceding each sinking fund Redemption Date to deliver such Officers’
Certificate or Company Order (or to deliver the Debt Securities specified in
this paragraph), the sinking fund payment due on the next succeeding sinking
fund payment date shall be paid entirely in cash (in the currency described
above) and shall be sufficient to redeem the principal amount of Debt
Securities as a mandatory sinking fund payment, without the option to deliver
or credit Debt Securities as provided in the first paragraph of this Section 4.05
and without the right to make an optional sinking fund payment as provided herein.


 


If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Debt Securities made in cash (in the currency
described above) shall exceed the minimum authorized denomination set forth in
an Officers’ Certificate pursuant to Section 3.01 or the equivalent in the
currency in which the Debt Securities of such series are payable (or a lesser
sum if the Company shall so request), unless otherwise provided by the terms of
such series of Debt Securities, said cash shall be applied by the Trustee on
the sinking fund Redemption Date with respect to Debt Securities of such series
at the applicable sinking fund Redemption Price with respect to Debt Securities
of such series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 4.03. The Trustee shall select,
in the manner provided in Section 4.02, for redemption on such sinking
fund Redemption Date a sufficient principal amount of Debt Securities of such
series to utilize said cash and shall thereupon cause notice of redemption of
the Debt Securities of such series for the sinking fund to be given in the
manner provided in Section 4.02 (and with the effect provided in Section 4.03)
for the redemption of Debt Securities in part at the option of the Company.
Debt Securities of any series which are identified by registration and
certificate number in an Officers’ Certificate at least 45 days prior to the
sinking fund Redemption Date as being beneficially owned by, and not pledged or
hypothecated by, the Company or an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company shall
be excluded from Debt Securities of such series eligible for selection for
redemption. Any sinking fund moneys not so applied or allocated by the Trustee
to the redemption of Debt Securities of such series shall be added to the next
cash sinking fund payment with respect to Debt Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 4.05. Any and all sinking fund
moneys with respect to Debt Securities of any series held by the Trustee at the
maturity of Debt Securities of such series, and not held for the payment or
redemption of particular Debt Securities of such series, shall be applied by
the Trustee, together with other moneys, if necessary, to be deposited


 


25

















 


sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at maturity.


 


The Trustee shall not convert any currency in which the Debt Securities
of such series are payable for the purposes of such sinking fund application
unless a Company Request is made, and any such conversion agreed to by the
Trustee in response to such request shall be for the account and at the expense
of the Company and shall not affect the Company’s obligation to pay the Holders
in the currency to which such Holder is entitled.


 


On or before each sinking fund Redemption Date provided with respect to
Debt Securities of any series, the Company shall pay to the Trustee in cash in
the currency described above a sum equal to all accrued interest, if any, to
the date fixed for redemption on Debt Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 4.05.


 


ARTICLE
5.

PARTICULAR COVENANTS OF THE COMPANY.


 


SECTION 5.01.      Payment of Principal, Premium and
Interest.  The Company will duly and punctually pay or
cause to be paid (in the currency in which the Debt Securities of such series
are payable) the principal of and premium, if any, and interest on each of the
Debt Securities at the place (subject to Section 3.03), at the respective times
and in the manner provided in each series of Debt Securities and in this
Indenture.


 


SECTION 5.02.      Offices for Notices and Payments,
etc.  (a)  So
long as the Debt Securities of any series remain Outstanding, the Company will
maintain at the Place of Payment, an office or agency where the Debt Securities
may be presented for payment, an office or agency where the Debt Securities may
be presented for registration of transfer and for exchange as provided in this
Indenture, and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities or of this Indenture may be served
and shall give the Trustee written notice thereof and any changes in the
location thereof. In case the Company shall at any time fail to maintain any
such office or agency, or shall fail to give notice to the Trustee of any
change in the location thereof, presentation and demand may be made and notice
may be served in respect of the Debt Securities or of this Indenture at said
office of the Trustee.


 


(b)           In addition to the office or agency
maintained by the Company pursuant to Section 5.02(a), the Company may
from time to time designate one or more other offices or agencies where the
Debt Securities may be presented for payment and presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designations, as the Company may
deem desirable or expedient; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain such office and agency
at the Place of Payment, for the purposes abovementioned. The Company will give
to the Trustee prompt written notice of (i) any such designation or rescission
thereof, and (ii) the location of any such office or agency outside the Place
of Payment and of any change of location thereof.


 


26
















 


SECTION 5.03.      Appointments to Fill Vacancies in Trustee’s Office. 
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 8.10, a
Trustee, so that there shall at all times be a Trustee hereunder.


 


SECTION 5.04.      Provisions as to Paying Agent.  (a) (1) Whenever
the Company shall have one or more paying agents for any series of Debt
Securities other than the Trustee, it will, on or before each due date of the
principal of (and premium, if any) or interest on any Debt Securities of such
series, deposit with a paying agent a sum sufficient to pay such amount
becoming due, such sum to be held as provided by the Trust Indenture Act of
1939, and (unless such paying agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.


 


(2)           The Company will cause each paying agent 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: (i) comply with the provisions of
the Trust Indenture Act of 1939 applicable to it as a paying agent and (ii) during
the continuance of any default by the Company (or any other obligor upon any
series of Debt Securities) in the making of any payment in respect of the Debt
Securities of such series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such paying agent as such.


 


(b)           If the Company shall act as its own
paying agent, it will, on or prior to each due date of the principal of and
premium, if any, or interest on Debt Securities of any series, set aside,
segregate and hold in trust for the benefit of the Holders of such Debt Securities
a sum sufficient to pay such principal and premium, if any, or interest so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor on such series of Debt
Securities) to make any payment of the principal of and premium, if any, or
interest on the Debt Securities when the same shall become due and payable.


 


(c)           Anything in this Section 5.04 to the
contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture with respect to any or
all series of Debt Securities then Outstanding, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company, or any
paying agent hereunder, as required by this Section 5.04, such sums to be
held by the Trustee upon the trusts herein contained.


 


(d)           Anything in this Section 5.04 to the
contrary notwithstanding, the agreement to hold sums in trust provided in this Section 5.04
is subject to Section 12.04.


 


SECTION 5.05.      Certificate to Trustee. 
So long as the Debt Securities of any series remain Outstanding, the
Company will deliver to the Trustee on or before 120 days after the end of each
fiscal year an Officers’ Certificate, one of the signers of which shall be the
principal executive officer, principal financial officer or principal
accounting officer of the Company, stating that in the course of the
performance by the signers of their duties as officers of the Company, they
would normally have knowledge of any default by the Company in the performance
or fulfillment or observance, without regard to grace periods or notice
requirements, of any covenants or agreements contained herein during the
preceding fiscal year, stating 


 


27

















 


whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge
and the nature thereof. The Officers’ Certificate need not comply with Section 14.05.


 


SECTION 5.06.      Waivers of Covenants.  Anything in
this Indenture to the contrary notwithstanding, the Company may fail or omit,
in respect of any series of Debt Securities, and in any particular instance, to
comply with a covenant, agreement or condition contained in Sections 5.02, 5.04
(other than in 5.04(a)(1) and (2)) or 5.05, or with any additional
covenant, agreement or condition contained in a Board Resolution or Officers’
Certificate establishing such series of Debt Securities, any indenture supplemental
hereto applicable to such series of any Debt Security of such series if the
Company shall have obtained and filed with the Trustee before or after the time
for such compliance the consent in writing of the Holders of more than 50% in
aggregate principal amount of the Debt Securities of the series affected by
such waiver at the time Outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but
no such waiver shall extend to or affect any obligation not expressly waived
nor impair any right consequent thereon and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and
effect.


 


SECTION 5.07.      Calculation of Original Issue Discount. 
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to time.


 


ARTICLE
6.

HOLDERS’ LISTS AND REPORTS BY THE COMPANY

AND THE TRUSTEE.


 


SECTION 6.01.      Holders’ Lists.  The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee, not more than 15 days after each Regular Record Date with respect to the
Debt Securities of any series, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of Debt Securities of such series as of a date not
more than 15 days prior to the time such information is furnished; provided,  however, that
no such list with respect to any particular series of Debt Securities need be
furnished at any such time if the Trustee is in possession thereof by reason of
its acting as the Debt Security Registrar for such series designated under Section 3.06
or otherwise.


 


SECTION 6.02.      Preservation and Disclosure of Lists.  (a) 
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of Debt Securities
contained in the most recent list furnished to it as provided in Section 6.01
or received by the Trustee in the capacity of the Debt Security Registrar (if
so acting) under Section 3.06. The Trustee may destroy any list furnished
to it as provided in Section 6.01 upon receipt of a new list so furnished.


 


28

















 


(b)           The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the
Debt Securities of any series or of all Debt Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act of 1939.


 


(c)           Every Holder of Debt 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 of 1939.


 


SECTION 6.03.      Reports by the Company. 
The Company agrees to 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 of
1939 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 Securities Exchange Act of 1934, as amended, shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission; provided further that any such
information, documents or reports filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system or any
successor thereto shall be deemed to be filed with the Trustee.  The Trustee shall have no responsibility
whatsoever to determine if any such filings have taken place, provided,
however, that the Company shall promptly notify the Trustee in writing whenever
it shall have made such filings with the Commission.  Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


SECTION 6.04.      Reports by the Trustee.  (a) 
The Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act of 1939 at the times and in the manner provided pursuant thereto.
The interval between transmissions of reports to be transmitted at intervals
shall be twelve months or such shorter time required by the Trust Indenture Act
of 1939. If the Trust Indenture Act of 1939 does not specify the date on which
a report is due, the such report shall be due on July 15 of each year
following the first issuance of Debt Securities.


 


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


 


29

















 


ARTICLE
7.

REMEDIES OF THE TRUSTEE AND HOLDERS

ON EVENT OF DEFAULT.


 


SECTION 7.01.      Events of Default.  “Event of
Default”, with respect to any series of Debt Securities, wherever used herein,
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),
unless such event is either inapplicable to such series or it is specifically
deleted or modified in the Board Resolution, Officers’ Certificate or
supplemental indenture under which such series of Debt Securities is issued or
in the form of Debt Security for such series:


 


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


 


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


 


(c)           default in the payment or satisfaction of
any sinking fund payment or analogous obligation, if any, with respect to the
Debt Securities of such series as and when the same shall become due and
payable by the terms of the Debt Securities of such series, and continuance of
such default for a period of 30 days;


 


(d)           failure on the part of the Company duly
to observe or perform any of the covenants, warranties or agreements on the
part of the Company in respect of the Debt Securities of such series in this
Indenture (other than a covenant, warranty or agreement a default in whose
performance or whose breach is specifically dealt with elsewhere in this
Section) continued for a period of 90 days after the date on which written
notice of such failure, specifying such failure and requiring the same to be
remedied, shall have been given to the Company by the Trustee, by registered
mail, or overnight courier, or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities
of such series;


 


(e)           a decree or order by a court having
jurisdiction in the premises shall have been entered adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the Federal bankruptcy laws or any other
similar applicable Federal or state law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee or other similar official in
bankruptcy or insolvency of the Company or of all or substantially all of its
property, or for the winding up or liquidation of its affairs, shall have been
entered, and such decree or order shall have continued undischarged and
unstayed for a period of 60 days;


 


(f)            the Company shall institute proceedings
to be adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or 


 


30

















 


answer
or consent seeking an arrangement or a reorganization under the Federal
bankruptcy laws or any other similar applicable Federal or state law, or shall
consent to the filing of any such petition, or shall consent to the appointment
of a receiver or liquidator or trustee or assignee or other similar official in
bankruptcy or insolvency of it or of all or substantially all of its property,
or shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due; or


 


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


 


then and in each
and every such case, so long as such Event of Default with respect to any
series of Debt Securities for which there are Debt Securities Outstanding
occurs and is continuing (other than an Event of Default specified in clause (e) or
(f) of Section 7.01) and shall not have been remedied or waived to
the extent permitted by the terms of this Indenture, unless the principal of
all of the Debt Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of such series, by notice
in writing to the Company (and to the Trustee if given by Holders), may declare
the principal (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Debt Securities of such
series and the interest accrued thereon to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Debt Securities of such
series contained to the contrary notwithstanding.  If an Event of Default specified in clause (e) or
(f) of Section 7.01 occurs and is continuing, then the principal
amount of (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms thereof as due and payable upon acceleration) and any
accrued and unpaid interest on that series shall immediately become due and
payable without any declaration or other act on the part of the Trustee or any
Holder.  This provision, however, is
subject to the condition that if, at any time after the principal of the Debt
Securities of such series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay in the currency in which the
Debt Securities of such series are payable all matured installments of interest
upon all of the Debt Securities and the principal of and premium, if any, on
any and all Debt Securities of such series which shall have become due
otherwise than by such declaration (with interest on overdue installments of
interest to the extent that payment of such interest is enforceable under
applicable law and on such principal and premium, if any, at the rate borne by
the Debt Securities of such series or as otherwise provided in the form of Debt
Security for such series, to the date of such payment or deposit) and the
expenses of the Trustee (subject to Section 8.06), and any and all
defaults under this Indenture, other than the nonpayment of principal of and
accrued interest on Debt Securities of such series which shall have become due
by such declaration, shall have been cured or shall have been waived in
accordance with Section 7.07 or provision shall have been made therefor —
then and in every such case the Holders of at least a majority in aggregate
principal amount of the Debt Securities of such series then Outstanding, by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its 


 


31

















 


consequences; but
no such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.


 


In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the Holders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the Holders shall continue as though no
such proceeding had been taken.


 


SECTION 7.02.      Payment of Debt Securities Upon Default; Suit
Therefor.  The Company covenants that (a) in case
default shall be made in the payment of any installment of interest upon any
Debt Security of any series as and when the same shall become due and payable,
and such default shall have continued for a period of 30 days, or (b) in
case default shall be made in the payment of the principal of and premium, if
any, on any Debt Security of any series as and when the same shall have become
due and payable, whether at maturity of the Debt Security or upon redemption or
by declaration or otherwise or (c) in case default shall be made in the
making or satisfaction of any sinking fund payment or analogous obligation with
respect to the Debt Securities of any series when the same becomes due by the
terms of the Debt Securities of any series, and such default shall have
continued for a period of 30 days—then the Company will pay to the Trustee, for
the benefit of the Holders of any such series, the whole amount that then shall
have become due and payable on any such Debt Securities for principal and
premium, if any, or interest, or both, as the case may be, with interest upon
the overdue principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law) upon the overdue installments
of interest at the rate borne by the Debt Securities of such series or as
otherwise provided in the form of Debt Security of such series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred and advances
made by the Trustee, except compensation or advances arising, or expenses or
liabilities incurred, as a result of the Trustee’s gross negligence or willful
misconduct.


 


In case the Company shall fail forthwith to pay such amounts, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor on such Debt Securities
and collect, in the manner provided by law out of the property of the Company
or any other obligor on such Debt Securities wherever situated, the moneys
adjudged or decreed to be payable. If any Event of Default with respect to any
series of Debt Securities occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the 


 


32

















 


Holders of Debt 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.


 


In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities
of any series under the Federal bankruptcy laws or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities
of any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 7.02, shall be
entitled and empowered by intervention in such proceedings or otherwise, (a) to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Debt Securities of such series, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Debt Securities of such series allowed in
such judicial proceedings relative to the Company or any other obligor on such
Debt Securities, its or their creditors, or its or their property, (b) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of any Debt Securities of any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and (c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders of the
Debt Securities of such series to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments
directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred and advances made by
the Trustee except compensation or advances arising, or expenses or liabilities
incurred, as a result of the Trustee’s gross negligence or willful misconduct.


 


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


 


All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any of such Debt Securities, or the production
thereof on any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the Holders of the Debt Securities of such series in respect
of which such judgment has been recovered.


 


33

















 


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


 


SECTION 7.03.      Application of Moneys Collected by Trustee. 
Any moneys collected by the Trustee pursuant to Section 7.02 and
any other money or property distributed in respect of the Company’s obligations
under this Indenture after an Event of Default shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Debt Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:


 


FIRST:            To the payment of costs and expenses of collection and
compensation to the Trustee, its agents, attorneys and counsel, and of all
other expenses and liabilities incurred, and all advances made, by the Trustee
except compensation or advances arising, or expenses or liabilities incurred,
as a result of its gross negligence or willful misconduct, and any other
amounts owing the Trustee under Section 8.06;


 


SECOND:       To the payment of the amounts then due and unpaid to
the holders of Senior Indebtedness, to the extent required by Article Fifteen;


 


THIRD:          In case the principal of the Debt Securities of such
series shall not have become due and be unpaid, to the payment of interest on
such Debt Securities, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the rate borne by
such Debt Securities, such payments to be made ratable to the Persons entitled
thereto;


 


FOURTH:      In case the principal of the Debt Securities of such
series shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Debt Securities for principal
and premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the rate borne by such
Debt Securities; and in case such moneys shall be insufficient to pay in full
the whole amounts so due and unpaid upon such Debt Securities, then, to the
payment of such principal and premium, if any, and interest without preference
or priority of principal and premium, if any, over interest, or of interest
over principal and premium, if any, or of any installment of interest over any
other installment of interest, or of any Debt Security of such series over any
other such Debt Security, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest;


 


FIFTH:           To the payment of any surplus then remaining to the
Company, its successors or assigns, or to whomsoever may be lawfully entitled
to receive the same.


 


SECTION 7.04.      Proceedings by Holders. 
No Holder of any Debt Security of any series shall have any right by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law or in bankruptcy or otherwise
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any 


 


34

















 


other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of such
series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding (and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 7.07), it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Debt Security of every series with every other taker and Holder and
the Trustee, that no one or more Holders of Debt Securities 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 Holder
of such Debt Securities, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Indenture (it
being understood that the Trustee does not have an affirmative duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders), except in the manner herein provided and for the equal, ratable
and common benefit of all Holders of Debt Securities.


 


SECTION 7.05.      Proceedings by Trustee. 
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.


 


SECTION 7.06.      Remedies Cumulative and Continuing. 
All powers and remedies given by this Article Seven to the Trustee
or to the Holders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 7.04, every power and remedy given by this Article Seven
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders.


 


SECTION 7.07.      Direction of Proceedings and Waiver of Defaults by
Majority of Holders.  The Holders of a majority in aggregate
principal amount of the Outstanding Debt 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 Debt Securities by this Indenture;
provided, however, that (subject to the provisions of Section 8.01) the
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine upon advice of counsel that 


 


35

















 


the action or proceeding so directed may not lawfully
be taken or would be materially and unjustly prejudicial to the rights of
Holders not joining in such direction or if the Trustee in good faith shall
determine that the action or proceeding so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would
be unduly prejudicial to the interests of Holders of the Debt Securities of all
series not joining in the giving of said direction, it being understood that (subject
to Section 8.01) the Trustee shall have no duty to ascertain whether or
not such actions or forebearances are duly prejudicial to such Holders. The
Trustee may take any other action deemed proper by the Trustee not inconsistent
with such direction. Subject to Section 7.01, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series may
on behalf of the Holders of all the Debt Securities of such series waive any
past default or Event of Default hereunder and its consequences except a
default in the payment of principal of or premium, if any, or interest on such
Debt Securities, or a default in the making of any sinking fund payment with
respect to such Debt Securities. Upon any such waiver the Company, the Trustee
and the Holders of such Debt Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default shall have been
waived as permitted by this Section 7.07, said default or Event of Default
shall for all purposes of the Debt Securities and this Indenture be deemed to
have been cured and to be not continuing.


 


This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act of 1939 and such Sections
316(a)(1)(A) and Section 316(a)(1)(B) are hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act of 1939.


 


SECTION 7.08.      Notice of Defaults.  Within 90
days after the occurrence of any default hereunder with respect to the Debt
Securities of any series, the Trustee shall transmit first-class mail, postage
prepaid, to all Holders of Debt Securities of such series, as their names and
addresses appear in the Debt Security Register, notice of such default
hereunder known to a Responsible Officer of the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
on any Debt Security of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Debt
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 7.01(d) with respect to
Debt Securities of such series, no such notice to Holders shall be given until
at least 60 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 Debt Securities of
such series.


 


SECTION 7.09.      Undertaking to Pay 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,
including legal fees and expenses against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act of 1939; provided
that neither this Section nor the Trust Indenture Act of 1939 shall be


 


36
















 


deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee, and any provision of the Trust Indenture Act of 1939 to such
effect is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act of 1939.


 


SECTION 7.10.      Unconditional Right of Holders to Receive
Principal, Premium and Interest. 
Notwithstanding any other provision in this Indenture, the Holder of any
Debt Security shall have the rights, which are absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section 3.08)
interest on such Debt Security on the respective Stated Maturities expressed in
such Debt Security (or in the case of redemption or repayment, on the date for
redemption or repayment, as the case may be) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.


 


ARTICLE
8.

CONCERNING THE TRUSTEE.


 


SECTION 8.01.      Duties and Responsibilities of Trustee.


 


(a)           Except during the continuance of an Event
of Default, the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.


 


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


 


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


 


(1)           this Subsection (c) shall not be construed to
limit the effect of Subsections (a) or (d) of this Section 8.01;


 


(2)           the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and


 


(3)           the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series.


 


37

















 


(d)           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.


 


(e)           Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section 8.01.


 


SECTION 8.02.      Reliance on Documents, Opinions, etc..  Subject to the
provisions of Section 8.01,


 


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


 


(b)           any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by Company
Request or Company Order (unless otherwise evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may
be evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;


 


(c)           the Trustee may consult with counsel of
its selection and the 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 reliance thereon;


 


(d)           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 the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred by it in compliance with such request or
direction;


 


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


 


(f)            the Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note, or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority in
principal amount of such Debt Securities then Outstanding; provided,
however, that the expenses of every such
investigation shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; and provided, further, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by 


 


38

















 


the
terms of this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to so proceeding;


 


(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 liable or responsible
for any misconduct, bad faith or negligence on the part of any agent or
attorney appointed with due care by it hereunder;


 


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


 


(i)            the rights, privileges, protections,
immunities and benefits given to the Trustee, including its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;


 


(j)            the permissive rights of the Trustee
enumerated herein shall not be construed as duties;


 


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


 


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


 


(m)          the Trustee may request that the Company
deliver a certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture.


 


SECTION 8.03.      No Responsibility for Recitals, etc. 
The recitals contained herein and in the Debt Securities (except in the
Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series. The
Trustee represents that it is duly authorized to execute and deliver this
Indenture. Neither the Trustee nor the Authenticating Agent shall be
accountable for the use or application by the Company or any Debt Securities or
the proceeds of any Debt Securities authenticated and delivered by the Trustee
in conformity with the provisions of this Indenture.


 


SECTION 8.04.      Trustee and Agents May Own Debt Securities. 
The Trustee, any paying agent, or any agent of the Trustee or the
Company under this Indenture, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities of any series with the same
rights it would have if it were not Trustee or such agent and, subject to
Sections 8.08 and 8.13, if operative, may otherwise deal with the Company and
receive, collect, hold, and retain 


 


39

















 


collections from the Company with the same rights it
would have if it were not the Trustee or such agent.


 


SECTION 8.05.      Moneys to be Held in Trust. 
Subject to the provisions of Section 12.04, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor any
paying agent shall be under any liability for interest on, or to invest, any
moneys received by it hereunder except such as it may agree with the Company to
pay thereon. So long as no Event of Default with respect to the Debt Securities
of any series shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time upon the receipt of a Company
Order.


 


SECTION 8.06.      Compensation and Expenses of Trustee. 
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed
between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
compensation and the expenses and disbursements of its counsel and all persons
not regularly in its employ and any amounts paid by the Trustee to any
Authenticating Agent pursuant to Section 8.14) except any such expense,
disbursement or advance as may arise from its gross negligence or willful
misconduct. The Company also covenants to indemnify the Trustee for, and to
hold it harmless against, any and all loss, damage, claims, liability or
expense incurred without gross negligence or bad faith on the part of the
Trustee and arising out of or in connection with this Indenture, including the
acceptance or administration of this trust, or the performance of its duties
hereunder, including the current payment of all costs and expenses of defending
itself against any claim (whether asserted by the Company, a Holder or any other
Person) of liability in the premises. The obligations of the Company under this
Section 8.06 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Debt Securities upon all property and
funds held or collected by the Trustee as such. 
In addition to, but without prejudice to its other rights under this
indenture, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 7.01(e) or Section 7.01(f),
the expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.


 


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


 


The provisions of this Section shall survive the
termination of this Indenture, the satisfaction and discharge of this Indenture
and the resignation or removal of the Trustee.


 


SECTION 8.07.      Officers’ Certificate as Evidence. 
Subject to the provisions of Section 8.01, whenever in the
administration of the provisions of this Indenture the Trustee shall 


 


40

















 


deem it necessary or desirable that a matter be proved
or established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of gross negligence or willful misconduct on the part of
the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate conforming to the requirements of this Indenture delivered to the
Trustee, and such Officers’ Certificate, in the absence of gross negligence or
willful misconduct on the part of the Trustee, shall be full warrant to the
Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.


 


SECTION 8.08.      Conflicting Interest of Trustee. 
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act of 1939, the Trustee shall either eliminate
such conflicting interest or resign in the manner provided by, and subject to
the provisions of, the Trust Indenture Act of 1939 and this Indenture.


 


SECTION 8.09.      Eligibility of Trustee. 
There shall at all times be a Trustee with respect to each series of
Debt Securities hereunder which shall be a Person organized and doing business
under the laws of the United States or any state or territory thereof or of the
District of Columbia authorized under such laws to exercise trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, state, territorial, or District of
Columbia authority and willing to act as Trustee hereunder. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.09, 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. In case at any time the
Trustee with respect to any series of Debt Securities shall cease to be
eligible in accordance with the provisions of this Section 8.09, such
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.10.


 


SECTION 8.10.      Resignation or Removal of Trustee.  (a) 
The Trustee may at any time resign with respect to any series of Debt
Securities by giving written notice by first class mail of such resignation to
the Company and to the Holders of such series of Debt Securities at their
addresses as they shall appear on the Debt Security Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee with respect to such series shall have been so appointed
and have accepted appointment within 60 days after the mailing of such notice of
resignation to the Holders, the resigning Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of such series of Debt Securities who has been
a bona fide Holder of a Debt Security or Debt Securities of such series for at
least six months may, subject to the provisions of Section 7.09, on behalf
of such Holder and all others similarly situated, petition any such court for
the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint such successor trustee.


 


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


 


41

















 


(1)           the Trustee shall fail to comply with the
provisions of Section 8.08 after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Debt Security or Debt
Securities of such series for at least six months, unless the Trustee’s duty to
resign is stayed in accordance with the provisions of Section 310(b) of
the Trust Indenture Act of 1939,


 


(2)           the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.09 and shall fail to resign
after written request therefor by the Company or by any such Holder of a note
of such series, or


 


(3)           the Trustee shall become incapable of
acting with respect to any series of Debt Securities, 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, the Company may remove the Trustee with respect to such series and
appoint a successor trustee for such series by Company Order, one copy of which
Company Order shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.09, any
Holder who has been a bona fide Holder of a Debt Security or Debt Securities of
such series for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove such Trustee and appoint such successor
trustee.


 


(c)           The Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of any series may at any
time remove the Trustee with respect to such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Company
the evidence provided for in Section 9.01 of the action in that regard
taken by the Holders, and nominate a successor Trustee which shall be deemed
appointed as successor Trustee unless within ten days after such nomination the
Company objects thereto, in which case the Trustee so removed or any Holder of
a Debt Security or Debt Securities of such series, upon the terms and
conditions and otherwise as in subsection (a) of this Section 8.10
provided, may petition any court of competent jurisdiction for an appointment of
a successor Trustee with respect to such series. If no successor Trustee with
respect to such series shall have been so appointed and have accepted
appointment within 60 days after the mailing of such notice of removal, the
Trustee being removed may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor trustee.


 


(d)           Any resignation or removal of the Trustee
with respect to all or any series of Debt Securities and any appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.10
shall become effective upon acceptance of appointment by the successor Trustee
as provided in Section 8.11.


 


SECTION 8.11.      Acceptance by Successor Trustee. 
Any successor Trustee appointed as provided in Section 8.10 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and 


 


42

















 


thereupon the resignation or removal of the
predecessor Trustee shall become effective with respect to all or any series as
to which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder with respect to all
or any such series, with like effect as if originally named as Trustee herein
with respect to all or any such series; nevertheless, on the written request of
the Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 8.06,
execute and deliver an instrument transferring to such successor Trustee all
the rights and powers of the Trustee with respect to all or any such series so
ceasing to act. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor Trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such Trustee with respect to all or any series as to which
it is resigning as Trustee, to secure any amounts and shall be entitled to any
indemnities then due it pursuant to the provisions of Section 8.06.


 


No successor Trustee shall accept appointment as provided in this Section 8.11
unless at the time of such acceptance such successor Trustee shall be qualified
under the provisions of Section 8.08 and eligible under the provisions of Section 8.09.


 


Upon acceptance of appointment by a successor Trustee with respect to
all or any series of Debt Securities as provided in this Section 8.11, the
Company shall mail notice of the succession of such Trustee hereunder to the
Holders of Debt Securities of such series at their addresses as they shall
appear on the Debt Security Register. If the Company fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Company.


 


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


 


SECTION 8.12.      Succession by Merger, etc. 
Subject to Sections 8.08 and 8.09, any Person into which the Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.


 


43

















 


In case at the time any successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver such
Debt Securities so authenticated; and in case at that time any of the Debt
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Debt Securities in the name of such successor Trustee; and in
all such cases such certificate shall have the full force which it is anywhere
in the Debt Securities or in this Indenture provided that the certificate of
the Trustee shall have.


 


SECTION 8.13.      Limitation on Rights of Trustee as a Creditor. 
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Debt Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Company (or any such other obligor).


 


SECTION 8.14.      Authenticating Agents. 
There may be an Authenticating Agent or Authenticating Agents appointed
by the Trustee from time to time with power to act on its behalf and subject to
its direction in the authentication and delivery of any series of Debt
Securities issued upon original issuance, exchange, transfer or redemption
thereof as fully to all intents and purposes as though such Authenticating
Agent (or Authenticating Agents) had been expressly authorized to authenticate
and deliver such Debt Securities, and Debt Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as though authenticated by the Trustee hereunder. For all
purposes of this Indenture, the authentication and delivery of Debt Securities
by any Authenticating Agent pursuant to this Section 8.14 shall be deemed
to be the authentication and delivery of such Debt Securities “by the Trustee”,
and whenever this Indenture provides that “the Trustee shall authenticate and
deliver” Debt Securities or that Debt Securities “shall have been authenticated
and delivered by the Trustee”, such authentication and delivery by any
Authenticating Agent shall be deemed to be authentication and delivery by the
Trustee. Any such Authenticating Agent shall at all times be a Person organized
and doing business under the laws of the United States of America or of any
state or territory thereof or the District of Columbia, with a combined capital
and surplus of at least $50,000,000 and authorized under such laws to act as an
authenticating agent, duly registered to act as such, if and to the extent
required by applicable law and subject to supervision or examination by Federal
or state authority. If such Person publishes reports of its condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 8.14 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 an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.14, or to be duly registered if and to the
extent required by applicable law and regulations, it shall resign immediately
in the manner and with the effect herein specified in this Section 8.14.


 


Whenever reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series 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 its Authenticating
Agent appointed with respect to the Debt Securities of such series and a
certificate of authentication executed on behalf of the Trustee by its
Authenticating Agent appointed with respect to the Debt Securities of such
series.


 


44

















 


Any Person into which any Authenticating Agent may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
consolidation or conversion to which any Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all the corporate trust or the
authenticating agency business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such successor Person is
otherwise eligible under this Section 8.14, without the execution or
filing of any paper or any further act on the part of the parties hereto or
such Authenticating Agent or such successor Person.


 


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


 


Any Authenticating Agent may at any time resign as Authenticating Agent
with respect to any series of Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to any series of
Debt Securities by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time Authenticating Agent shall cease to
be eligible under this Section 8.14, the Trustee may, and shall, upon
request of the Company, promptly use its best efforts to appoint a successor
Authenticating Agent.


 


Upon the appointment, at any time after the original issuance of any of
the Debt Securities, of any successor, additional or new Authenticating Agent,
the Trustee shall give written notice of such appointment to the Company and
shall at the expense of the Company mail notice of such appointment to all
Holders of Debt Securities of such series as the names and addresses of such
Holders appear on the Debt Security Register.


 


Any successor Authenticating Agent with respect to any series of Debt
Securities upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like
effect as though originally named as an Authenticating Agent herein with
respect to such series. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 8.14 and duly
registered if and to the extent required under applicable law and regulations.


 


Any Authenticating Agent by the acceptance of its appointment with
respect to any series of Debt Securities shall be deemed to have agreed with
the Trustee that: (a) it will perform and carry out the duties of an
Authenticating Agent as herein set forth with respect to such series, 


 


45

















 


including the duties to authenticate and deliver Debt
Securities when presented to it in connection with exchanges, registrations of
transfer or redemptions thereof; (b) it will keep and maintain, and
furnish to the Trustee from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; (c) it is eligible for appointment as
Authenticating Agent under this Section 8.14 and will notify the Trustee
promptly if it shall cease to be so qualified; and (d) it will indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason of any acts or failures
to act of the Authenticating Agent with respect to such series but it shall
have no liability for any action taken by it at the specific written direction
of the Trustee.


 


The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation and expenses for its services, and the Trustee
shall have no liability for such payments.


 


The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03,
8.04, 8.06 (insofar as it pertains to indemnification), 9.01, 9.02 and 9.03
shall bind and inure to the benefit of each Authenticating Agent to the same
extent that they bind and inure to the benefit of the Trustee.


 


If an appointment with respect to one or more series is made pursuant
to this Section 8.14, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternate
certificate of authentication in the following form:


 


This
is one of the Debt Securities of the series designated herein issued under the
within-mentioned Indenture.


 


	
   

  	
  ,

  	
   

  	
   

  	
  ,

  
	
  As Trustee

  	
   

  	
  As Trustee

  
	
   

  	
   

  	
   

  
	
  -OR-

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
  ,

  
	
   

  	
  Authorized Officer

  	
   

  	
   

  	
  as Authenticating Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Authorized Officer

  
							



 


SECTION 8.15.      Preferential Collection of Claims Against the Company


 


.  If and when the Trustee shall
be or become a creditor of the Company (or any other obligor upon the Debt
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act of 1939 regarding the collection of claims against the Company
(or any such other obligor).


 


SECTION 8.16.      Trustee’s Application for Instructions from the Company


 


.  Any application by the Trustee
for written instructions from the Company may, at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted by the Trustee
under


 


46
















 


this Indenture and the date on and/or after which such action shall be
taken or such omission shall be effective. 
The Trustee shall not be liable for any action taken by, or omission of,
the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to
any earlier date) unless prior to taking any such action (or the effective date
in the case of an omission), the Trustee shall have received written
instructions in response to such application specifying the action to be taken
or omitted.


 


ARTICLE
9.

CONCERNING THE HOLDERS.


 


SECTION 9.01.      Action by Holders.  Whenever in
this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Debt Securities of any series may take any
action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage of
such series have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by Holders of such series in
person or by agent or proxy appointed in writing.


 


SECTION 9.02.      Proof of Execution by Holders. 
Subject to the provisions of Sections 8.01 and 8.02, proof of the
execution of any instrument by a Holder or such Holder’s agent or proxy shall
be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities shall be provided
by the Debt Security Register or by a certificate of the Debt Security
Registrar with respect to a series of Debt Securities.


 


SECTION 9.03.      Who Are Deemed Absolute Owners. 
The Company, the Trustee with respect to a series of Debt Securities,
and any agent of the Trustee or the Company under this Indenture may deem the
Person in whose name such Debt Security shall be registered upon the Debt
Security Register to be, and may treat such Person as, the absolute owner of
such Debt Security (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company, the Trustee or any such agent) for the purpose
of receiving payment of or on account of the principal of and premium, if any,
and interest on such Debt Security and for all other purposes; and neither the
Company nor the Trustee nor any such agent shall be affected by any notice to
the contrary.


 


SECTION 9.04.      Company-Owned Debt Securities Disregarded. 
In determining whether the Holders of the requisite aggregate principal
amount of Debt Securities of any series have concurred in any direction or
consent under this Indenture, Debt Securities of such series which are owned by
the Company or any other obligor upon such Debt Securities or any Affiliate of
the Company or such other obligor (except in the case in which the Company or
such other obligor or affiliate owns all Debt Securities Outstanding under the
Indenture, or all Outstanding Debt Securities of each such series, as the case
may be, without regard to this proviso) shall be disregarded and deemed not to
be Outstanding for the purpose of any such 


 


47

















 


determinations; provided, however, that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction or consent only
such Debt Securities which a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded. Debt Securities so owned which have been
pledged in good faith may be regarded as Outstanding notwithstanding this Section 9.04
if the pledgee shall establish to the satisfaction of the Trustee the right of
the pledgee to vote such Debt Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. The Company shall
furnish to the Trustee promptly an Officers’ Certificate listing and identifying
all Debt Securities of a series, if any, known by the Company to be owned or
held by or for the account of the Company or any other obligor on such Debt
Securities or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other
obligor on such Debt Securities; and, subject to the provisions of Section 8.01,
the Trustee shall be entitled to accept such Officers’ Certificates as
conclusive evidence of the facts therein set forth and of the fact that all
such Debt Securities not listed therein are Outstanding for the purpose of any
such determination.


 


SECTION 9.05.      Revocation of Consents; Future Holders Bound. 
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 9.01, of the taking of any action by the Holders of
the percentage in aggregate principal amount of the Debt Securities of any
series specified in this Indenture in connection with such action, any Holder
of a Debt Security which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to or are bound by consents to
such action, may, by filing written notice with the Trustee at the Corporate
Trust Office and upon proof of holding as provided in Section 9.02, revoke
such action so far as concerns such Debt Security. Except as aforesaid any such
action taken by the Holder of any Debt Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debt Security
and of any Debt Security issued on transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Debt Security. Any action taken by the Holders of
the percentage in aggregate principal amount of the Debt Securities specified
in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the Holders of all of the Debt Securities
affected by such action.


 


ARTICLE
10.

SUPPLEMENTAL INDENTURES.


 


SECTION 10.01.    Supplemental Indentures without Consent of Holders. 
The Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for one
or more of the following purposes:


 


(a)           to evidence the succession of another
Person to the Company, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Company
pursuant to Articles Five and Eleven hereof;


 


48

















 


(b)           to add to the covenants of the Company
such further covenants, restrictions, conditions or provisions as the Board of
Directors shall consider to be for the protection of the Holders of Debt
Securities of any or all series, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants,
restrictions, conditions or provisions a default or an Event of Default with
respect to such series permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such
additional covenant, restriction or condition, such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default;


 


(c)           to cure any ambiguity or to correct or
supplement any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture or to make any changes hereto that are
required by law;


 


(d)           to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee;


 


(e)           to make such other provisions in regard
to matters or questions arising under this Indenture as shall not materially
adversely affect the interests of the Holders of the Debt Securities;


 


(f)            to evidence and provide for the
acceptance of appointment by another Person as a successor Trustee hereunder
with respect to one or more series of Debt Securities 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 Section 8.11;


 


(g)           to modify, amend or supplement this
Indenture in such a manner as to permit the qualification of any indenture
supplemental hereto under the Trust Indenture Act of 1939 as then in effect,
except that nothing herein contained shall permit or authorize the inclusion in
any indenture supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act of 1939;


 


(h)           to provide for the issuance under this
Indenture of Debt Securities in coupon form (including Debt Securities
registrable as to principal only) and to provide for exchangeability of such
Debt Securities with Debt Securities of the same series issued hereunder in
fully registered form and to make all appropriate changes for such purpose;


 


(i)            to change or eliminate any of the
provisions of this Indenture, provided, however, that any such change or elimination shall become
effective only when there is no Debt Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision;


 


(j)            to secure the Debt Securities or add
guarantees thereof; or


 


49

















 


(k)           to establish any additional form of Debt
Security, as permitted by Section 2.02, and to provide for the issuance of
any additional series of Debt Securities, as permitted by Section 3.01,
and to set forth the terms thereof.


 


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


 


Any supplemental indenture authorized by the provisions of this Section 10.01
may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debt Securities at the time Outstanding, notwithstanding
any of the provisions of Section 10.02.


 


SECTION 10.02.    Supplemental Indentures with Consent of Holders. 
With the consent (evidenced as provided in Section 9.01) of the
Holders of greater than 50% in aggregate principal amount of the Outstanding
Debt Securities of each series affected by such supplemental indenture (all
such Holders voting as a single class), by act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Debt Securities of each series under this
Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holders
all of the Outstanding Debt Securities of each series affected, (a) extend
the fixed maturity of any Debt Security of such series, or reduce the rate or
extend the time of payment of interest thereon, or reduce the principal amount
thereof or any premium thereon, or make the principal thereof or interest or
premium thereon payable in any coin or currency other than that provided in the
Debt Securities of such series or (b) reduce the aforesaid percentage of
Debt Securities of a series, the Holders of which are required to consent (1) to
any such supplemental indenture, (2) to rescind and annul a declaration
that any Debt Securities of such series are due and payable as a result of the
occurrence of an Event of Default, (3) to waive any past default under the
Indenture and its consequences or (4) to waive compliance with Sections
5.02, 5.04 (other than 5.04(a)(1) and (2)) or 5.05, or with any additional
covenant, agreement or condition contained in a Board Resolution or Officers’
Certificate establishing such series of Debt Securities, any indenture
supplemental hereto applicable to such series or any Debt Security of such
series.


 


Upon the Trustee’s receipt of a Company Request, accompanied by a copy
of a Board Resolution certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders of Debt
Securities as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.


 


50

















 


It shall not be necessary for the consent of the Holders of Debt
Securities under this Section 10.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


SECTION 10.03.    Effect of Supplemental Indentures. 
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Ten, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders of Debt Securities shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


SECTION 10.04.    Notation on Debt Securities. 
Debt Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Ten may
bear a notation as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Debt Securities of any series so
modified as to conform to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Outstanding Debt
Securities of such series upon the receipt by the Trustee of a Company Order.


 


SECTION 10.05.    Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee.  The Trustee, subject to the provisions of
Sections 8.01 and 8.02, shall receive, and shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Ten and is authorized and permitted by this
Indenture.


 


ARTICLE
11.

CONSOLIDATION, MERGER, SALE AND CONVEYANCE.


 


SECTION 11.01.    Company May Consolidate, etc., on Certain
Terms.  Nothing contained in this Indenture or in any
of the Debt Securities shall prevent any consolidation or merger of the Company
with or into any other Person (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance
or lease of all or substantially all of the property of the Company to any
other Person (whether or not affiliated with the Company) authorized to acquire
and operate the same; provided, however, and the Company hereby covenants and
agrees, that any such consolidation, merger, sale, conveyance or lease shall be
upon the condition that (a) immediately after such consolidation, merger,
sale, conveyance or lease the Person (whether the Company or such other Person)
formed by or surviving any such consolidation or merger, or to which such sale,
conveyance or lease shall have been made, shall not be in default in the
performance or observance of any of the terms, covenants and conditions of this
Indenture to be kept or performed by the Company; (b) the Person (if other
than the Company) formed by or surviving any such consolidation or merger or to
which such sale, conveyance or lease shall have been made, shall be an entity 


 


51

















 


organized and validly existing under the laws of any
country that is a member of the European Union as currently constituted, or
Canada or any province thereof, the United States or any State thereof or the
District of Columbia; provided that in the case where the surviving Person is
not a corporation, a co-obligor of the Debt Securities is a corporation; and (c) the
due and punctual payment of the principal of and premium, if any, and interest
on all of the Debt Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee by the Corporation (if other than the
Company) formed by such consolidation, or into which the Company shall have
been merged, or by the Person which shall have acquired or leased such
property.


 


SECTION 11.02.    Successor Entity to be Substituted. 
In case of any such consolidation, merger, sale, conveyance or lease and
upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Debt Securities and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to
performed or observed by the Company, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and (except in the event of a
conveyance by way of lease) the predecessor Person shall be relieved of any
further obligation under this Indenture and the Debt Securities.


 


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


 


SECTION 11.03.    Opinion of Counsel to Be Given Trustee. 
The Trustee, subject to Sections 8.01 and 8.02, shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale or conveyance and any such assumption complies
with the provisions of this Article Eleven and that all conditions
precedent herein provided relating to such transactions have been complied
with.


 


ARTICLE
12.

SATISFACTION AND DISCHARGE OF INDENTURE.


 


SECTION 12.01.    Satisfaction, Discharge and Defeasance of Debt
Securities of any Series.  The Company shall be deemed to
have paid and discharged the entire indebtedness on all the Debt Securities of
a series, the provisions of this Indenture (except as to (x) the rights of
Holders of Debt Securities of such series to receive, from the money, in the
currency required, and Government Obligations deposited with the Trustee
pursuant to Section 12.02(a) or the interest and principal received
by the Trustee in respect of such Government Obligations, payment of the
principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Debt Securities on the Stated Maturities
thereof or upon the Redemption Dates for Debt Securities required to be
redeemed pursuant to any mandatory sinking fund or analogous provisions
relating to Debt Securities of that series or pursuant to any call for
redemption relating to Debt Securities of that series, (y) the Company’s
rights and 


 


52

















 


obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 12.03 and 12.04, 5.02, 5.04, 6.01, 8.06, 8.10, 8.11 and,
to the extent applicable to such series, Article Four, so long as the
principal of (and premium, if any) and interest on the Debt Securities of such
series remain unpaid and, thereafter, only the Company’s rights and obligations
under Sections 5.04, 8.06, 12.03 and 12.04, and (z) the rights, powers,
trusts, duties and immunities of the Trustee with respect to the Debt
Securities of such series) as it relates to such Debt Securities shall no
longer be in effect, and the Trustee, at the expense of the Company, shall,
upon Company Request, execute proper instruments acknowledging the same if:


 


(a)           (1)  all Debt Securities of such
series therefore authenticated and delivered (other than (A) Debt
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.07 and (B) Debt 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 Sections 12.03 and 12.04) have been
delivered to the Trustee for cancellation;


 


(2)           the Company has paid or caused to be paid
in the currency required all other sums payable under this Indenture in respect
of the Debt Securities of such series; and


 


(3)           the Company has delivered to the Trustee
an Officers’ Certificate, an Opinion of Counsel and a written opinion of
independent public accountants, each stating that all conditions precedent
herein provided for relating to the satisfaction of the entire indebtedness of
all Debt Securities of any such series and the discharge of the Indenture as it
relates to such Debt Securities have been complied with; or


 


(b)           (1)  all Debt Securities of such
series 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;


 


(2)           the condition described in paragraph (a) of
Section 12.02 has been satisfied; and


 


(3)           the conditions described in paragraphs
(a)(2) and (a)(3) of this Section 12.01 have been satisfied; or


 


(c)           (1) the conditions referred to in
paragraphs (b)(2) and (b)(3) of this Section 12.01 have been
satisfied;


 


(2)           no Event of Default or event which with
notice or lapse of time would become an Event of Default shall have occurred
and be continuing on the date of the deposit referred to in paragraph (a) of
Section 12.02 or on the ninety-first day after the date of such deposit; provided, however, that
should that condition fail to be satisfied on or before such ninety-first day,
the Trustee shall promptly, upon satisfactory receipt of evidence of such
failure, return such deposit to the Company;


 


(3)           the Company has either (A) delivered
to the Trustee an opinion of counsel of a nationally-recognized independent tax
counsel to the effect that Holders of the Debt Securities of 


 


53

















 


such
series will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and the satisfaction, discharge and defeasance
contemplated by this paragraph (c) of this Section 12.01 and will be
subject to Federal income tax on the same amounts and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred or (B) the Company shall have received from, or there shall
have been published by, the United States Internal Revenue Service a ruling to
the effect stated in subsection (A) of this Section 12.01(c)(3); and


 


(4)           the Company has received an Opinion of
Counsel to the effect that the satisfaction, discharge and defeasance
contemplated by this Section 12.01 will not result in the delisting of the
Debt Securities of that series from any nationally-recognized securities
exchange on which they are listed.


 


SECTION 12.02.    Defeasance of Debt Securities of any Series. 
The provisions of this Indenture (except as to (x) the rights of
Holders of Debt Securities of any series to receive, from the money, in the
currency required, and Government Obligations deposited with the Trustee
pursuant to paragraph (a) below or the interest and principal received by
the Trustee in respect of such Government Obligations, payment of the principal
of (and premium, if any) and any installment of principal of (and premium, if
any) or interest on such Debt Securities on the Stated Maturities thereof or
upon the Redemption Dates for Debt Securities required to be redeemed pursuant
to any mandatory sinking or analogous provisions relating to Debt Securities of
that series or pursuant to any call for redemption relating to Debt Securities
of that series, (y) the Company’s rights and obligations with respect to
such Debt Securities under Sections 3.06, 3.07, 12.03, 12.04, Article Seven
(other than subsection (d) of Section 7.01), Sections 5.01, 5.02,
5.04, 6.01, 8.06, 8.10, 8.11 and, to the extent applicable to such series, Article Four,
so long as the principal of (and premium, if any) and interest on the Debt
Securities of such series remain unpaid and, thereafter, only the Company’s
rights and obligations under Sections 5.04, 8.06, 12.03 and 12.04, and (z) the
rights, powers, trusts, duties and immunities of the Trustee with respect to
the Debt Securities of such series) as it relates to Debt Securities of any
series shall no longer be in effect, and the Trustee, at the expense of the
Company shall, upon Company Request, execute proper instruments acknowledging
the same if:


 


(a)           the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose (1) money
in an amount, or (2) Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide on or before the due date of any payment in respect of such series of
Debt Securities in an amount, or (3) a combination thereof, sufficient,
after payment of all Federal, state and local taxes in respect thereof payable
by the Trustee, 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 (A) the principal of (and premium, if
any) and each installment of principal (and premium, if any) and interest on
the Outstanding Debt Securities of that series on the Stated Maturity of such
principal or installment of principal or interest and (B) any mandatory
sinking fund payments or analogous payments or payments pursuant to any call
for redemption applicable to Debt Securities of such series on the day on which
such payments are due and payable in accordance with the terms of the Indenture
and such Debt Securities;


 


54
















 


(b)           no Event of Default or event which with
notice or lapse of time would become an Event of Default shall have occurred
and be continuing on the date of such deposit;


 


(c)           the interest of the Holders in such
deposit shall have been duly perfected under the applicable provisions of the
Uniform Commercial Code; and


 


(d)           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 defeasance contemplated
by this Section have been complied with.


 


SECTION 12.03.    Application of Trust Funds; Indemnification.  (a) 
Subject to the provisions of Section 12.04, all money and Government
Obligations deposited with the Trustee pursuant to Section 12.01 or 12.02
and all money received by the Trustee in respect of Government Obligations
deposited with the Trustee, shall be held in trust and applied by it, in
accordance with the provisions of the Debt 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 premium, if any) and interest for whose
payment such money and Government Obligations have been deposited with or
received by the Trustee as contemplated by Section 12.01 or 12.02.


 


(b)           The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to Section 12.01 or 12.02 or the
interest and principal received in respect of such obligations, other than any
such tax, fee or other charge payable by or on behalf of Holders. The Company
shall be entitled to prompt notice of an assessment or the commencement of any
proceeding for which indemnification may be sought hereunder and, at its
election, to contest such assessment or to participate in, assume the defense
of, or settle such proceeding.


 


(c)           The Trustee shall deliver or pay to the
Company from time to time upon Company Request any Government Obligations or
money held by it as provided in Section 12.01 or 12.02 which, in the
opinion of a nationally-recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such obligations or money were deposited or
received.


 


(d)           If the Trustee is unable to apply any
money or Government Obligations in accordance with this Section 12.03 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the Debt
Securities, if any, of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.01 or Section 12.02, as
the case may be, until such time as the Trustee is permitted to apply all such
money or Government Obligations in accordance with this Section 12.03;
provided, however, that if the Company has made any payment of interest on or
principal of (and premium, if any) on any Debt Securities, if any, of such
series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such series of Debt Securities, if
any, to receive such payment from the money or Government Obligations held by
the Trustee.


 


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SECTION 12.04.    Return of Unclaimed Moneys. 
Any moneys deposited with or paid to the Trustee or any paying agent for
payment of the principal of and premium, if any, or interest on Debt Securities
and not applied but remaining unclaimed by the Holders of Debt Securities for
two years after the date upon which the principal of and premium, if any, or
interest on such Debt Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
demand; and the Holder of any of the Debt Securities entitled to receive such
payment shall thereafter look only to the Company for any payment thereof.


 


SECTION 12.05.    Reinstatement.  If the
Trustee is unable to apply any money or Government Obligations in accordance
with Sections 12.01 or 12.02 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations
under this Indenture and the Debt Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Sections 12.01 or 12.02 until such
time as the Trustee is permitted to apply all such money or Government
Obligations in accordance with Sections 12.01 or 12.02; provided that, if the
Company has made any payment of principal of or interest on the Debt Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Debt Securities to receive such
payment from the money or Government Obligations held by the Trustee.


 


ARTICLE
13.

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS.


 


SECTION 13.01.    Indenture and Debt Securities Solely Obligations of
the Company.  No recourse under or upon any obligation,
covenant or agreement of this Indenture, any supplemental indenture, or of any
Debt Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, organizer, stockholder, member, owner,
officer, director, manager or employee, as such, past, present or future, of
the Company or any Subsidiary or of any predecessor or successor Person, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely obligations of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, any incorporator, organizer, stockholder, member, owner, officer, director,
manager or employee, as such, of the Company or of any predecessor or successor
Person, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture, or in any of the Debt Securities or implied
thereby; and that any and all such personal liability, either at common law or
in equity or by constitution or statute of, and any and all such rights and
claims against, every such incorporator, organizer, stockholder, member, owner,
officer, director, manager or employee, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Debt
Securities or implied thereby, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of such Debt Securities.


 


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ARTICLE
14.

MISCELLANEOUS PROVISIONS.


 


SECTION 14.01.    Provisions Binding on Successors of the Company. 
All of the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.


 


SECTION 14.02.    Indenture for Sole Benefit of Parties and Holders
of Debt Securities.  Nothing in this Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any
Person, firm or corporation, other than the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt
Securities, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being, subject to the
provisions of Articles Eleven and Thirteen, for the sole benefit of the parties
hereto, any agent of the Trustee or the Company under this Indenture and the
Holders of the Debt Securities.


 


SECTION 14.03.    Addresses for Notices, etc. 
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Debt Securities on the Company may be given or served by being deposited,
registered or certified mail postage prepaid, in a post office letter box in
the United States addressed (until another address is filed by the Company with
the Trustee) to the Company, 2400 S. 44th Street, Manitowoc, Wisconsin
54221-0066, Telecopier No.:
                              ,
Attention: Treasurer, with a copy to 2400 S. 44th Street, Manitowoc, Wisconsin
54221-0066, Telecopier No.:
                              ,
Attention: General Counsel. Any notice, direction, request or demand by any
Holder of a Debt Security or the Company to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee, addressed to the
attention of its corporate trust department. Any notice, report or other
instrument required by any of the provisions of this Indenture to be given by
the Company or the Trustee to the Holders of Debt Securities of any or all
series shall be deemed to have been sufficiently given, for all purposes, when
mailed by first class mail, or, in the case of a Global Debt Security, electronic
transmission.


 


SECTION 14.04.    New York Contract; Waiver of Jury Trial. 
This Indenture and the Debt Securities shall for all purposes be
construed in accordance with and governed by the laws of the State of New York,
without regard to conflicts of laws principles thereof. EACH OF THE COMPANY AND
THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE DEBT SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.


 


SECTION 14.05.    Evidence of Compliance with Conditions Precedent. 
Upon any Company request to the Trustee to take any action under any of
the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent, if any (including
any covenant, compliance with which constitutes a condition precedent) provided
for in this Indenture relating to the proposed action have been complied with 


 


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and an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing
of such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.


 


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


 


SECTION 14.06.    Legal Holidays.  In any case
where the date of maturity of interest on or principal of or premium, if any,
on any series of Debt Securities or the date fixed for redemption of any Debt
Security or Debt Securities will be a legal holiday or a day on which banking
institutions are legally authorized or obligated to close in New York or any
other location where a paying agent appointed pursuant to Section 5.02 is
located, then payment of such interest on or principal of and premium, if any,
on such Debt Securities need not be made by such paying agent on such date but
may be made by such paying agent on the next succeeding business day that is
not a day in such location that is either a legal holiday or a day on which
banking institutions are legally authorized or obligated to close, with the
same force and effect as if made on such date of maturity or the date fixed for
redemption and no interest shall accrue for the period from and after such
prior date.


 


SECTION 14.07.    Trust Indenture Act of 1939 to Control. 
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317 of the Trust Indenture Act of 1939,
by the operation of Section 318(c) thereof, such imposed duties shall
control, except as, and to the extent, expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that 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 14.08.    Table of Contents, Headings, etc. 
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.


 


SECTION 14.09.    Determination of Principal Amount. 
In determining whether the Holders of the requisite principal amount of
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, (a) the
principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such 


 


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purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 7.01,
(b) the principal amount of any Debt Securities denominated in a Foreign
Currency that shall be deemed to be Outstanding for such purposes shall be
determined by the Company by converting the Foreign Currency into Dollars at
the Market Exchange Rate as of the date of such determination and (c) the
principal amount of any Indexed Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal face amount
of such Indexed Debt Security at original issuance, unless otherwise provided
in or pursuant to this Indenture.


 


SECTION 14.10.    Execution in Counterparts. 
This Indenture may be executed in any number of counterparts, each of
which shall be an original and such counterparts shall together constitute but
one and the same instrument. The exchange of copies of this Indenture and of
signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and
may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all
purposes.
                                                                      
hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.


 


SECTION 14.11.    Force Majeure.  In no event shall
the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


SECTION 14.12.    U.S.A. Patriot Act.  The parties
hereto acknowledge that in accordance with Section 326 of the U.S.A.
Patriot Act, the Trustee, like all financial institutions and in order to help
fight the funding of terrorism and money laundering, is required to obtain,
verify, and record information that identifies each person or legal entity that
establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in order for
the Trustee to satisfy the requirements of the U.S.A. Patriot Act.


 


ARTICLE
15.

SUBORDINATION OF DEBT SECURITIES.


 


SECTION 15.01.    Debt Securities Subordinated to Senior Indebtedness. 
The Company covenants and agrees, and each Holder of Debt Securities, by
such Holder’s acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Debt Securities and the payment of any and all
amounts payable in respect of each and all of the Debt Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of Senior Indebtedness,
whether outstanding on the date of this Indenture or thereafter incurred,
assumed or guaranteed.


 


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In the event (x) of any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company
whether in a bankruptcy, insolvency, reorganization or receivership proceeding
or upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company or otherwise, except a distribution
in connection with a merger or consolidation or a conveyance or transfer of all
or substantially all of the properties of the Company which complies with the
requirements of Article Eleven, (y) that a default shall have
occurred and be continuing with respect to the payment of any amount payable in
respect of any Senior Indebtedness, or (z) that the principal of the Debt
Securities of any series shall have been declared due and payable pursuant to Section 7.01
and such declaration shall not have been rescinded and annulled as provided in Section 7.01,
then:


 


(a)           in a circumstance described in the
foregoing clause (x) or (y) the holders of all Senior Indebtedness,
and in the circumstance described in the foregoing clause (z) the holders
of all Senior Indebtedness outstanding at the time the principal of such Debt
Securities (or in the case of Original Issue Discount Debt Securities, such
portion of the principal amount) shall have been so declared due and payable,
shall first be entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money’s worth, before the
Holders of any of the Debt Securities are entitled to receive any payment in
respect of the indebtedness evidenced by the Debt Securities;


 


(b)           any payment by, or distribution of assets
of, the Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or readjusted
or securities of the Company or any other Person provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in this Article with respect to the Debt Securities, to
the payment of all Senior Indebtedness, provided that the rights of the holders
of the Senior Indebtedness are not altered by such reorganization or
readjustment), to which the Holders of any of the Debt Securities would be
entitled except for the provisions of this Article shall be paid or
delivered by the Person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of such Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of such Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid after giving effect
to any concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Holders of the indebtedness evidenced by the Debt Securities under this
Indenture; and


 


(c)           in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities (other than securities of
the Company as reorganized or readjusted or securities of the Company or any
other Person provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this Article with
respect to the Debt Securities, to the payment of all Senior Indebtedness,
provided that the rights of the holders of Senior Indebtedness are not altered
by such reorganization or readjustment), shall be received by the Holders of
any of the Debt Securities before all Senior Indebtedness is paid in full, such
payment 


 


60

















 


or
distribution shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders of
such Senior Indebtedness.


 


SECTION 15.02.    Subrogation.  Subject to
the payment in full of all Senior Indebtedness to which the indebtedness
evidenced by the Debt Securities is in the circumstances subordinated as
provided in Section 15.01, the Holders of the Debt Securities shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to such Senior Indebtedness until all amounts owing on the Debt
Securities shall be paid in full, and, as between the Company, its creditors
other than holders of such Senior Indebtedness, and the Holders of the Debt
Securities, no such payment or distribution made to the holders of such Senior
Indebtedness by virtue of this Article which otherwise would have been
made to the Holders of the Debt Securities shall be deemed to be a payment by
the Company on account of such Senior Indebtedness, it being understood that
the provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Debt Securities, on the
one hand, and the holders of Senior Indebtedness.


 


SECTION 15.03.    Obligation of the Company Unconditional. 
Nothing contained in this Article or elsewhere in this Indenture or
in the Debt Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the Holders of
the Debt Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Debt Securities the principal of
and interest on and any additional amounts owing in respect of the Debt
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Debt Securities and creditors of the Company other than the
holders of Senior Indebtedness nor shall anything herein or therein prevent the
Trustee or the Holder of any Debt 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
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.


 


Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Debt Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other Person making any
payment or distribution, delivered to the Trustee or to the Holders of the Debt
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article.


 


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SECTION 15.04.    Payments on Debt Securities Permitted. 
Nothing contained in this Article or elsewhere in this Indenture,
or in any of the Debt Securities, shall affect the obligation of the Company to
make, or prevent the Company from making, payment of the principal of or
interest on or any additional amounts owing in respect of the Debt Securities
in accordance with the provisions hereof and thereof, except as otherwise
provided in this Article.


 


SECTION 15.05.    Effectuation of Subordination by Trustee. 
Each Holder of Debt Securities, by such Holder’s acceptance thereof,
authorizes and directs the Trustee on such Holder’s behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee such Holder’s attorney-in-fact for
any and all such purposes.


 


SECTION 15.06.    Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness; Knowledge of Trustee.  With respect
to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee.  The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if it shall pay over or deliver to the
Holders or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise. Notwithstanding the provisions of this Article or any other
provisions 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 of
moneys to or by the Trustee in respect of the Debt Securities of any series, or
the taking of any other action by the Trustee, unless and until a Responsible
Officer of the Trustee shall have received at the Corporate Trust Office of the
Trustee written notice thereof from the Company, any Holder of Debt Securities,
any paying or conversion agent of the Company or the holder or representative
of any class of Senior Indebtedness; and before the receipt of any such written
notice, the Trustee shall be entitled in all respects to assume that no such
facts exist; provided 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 the payment of the
principal of or interest on, or additional amounts owing in respect of, any
Debt Security) then, anything herein contained to the contrary notwithstanding,
the Trustee shall have all power and authority to receive such money and 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 during or
after such three Business Day period. 
The Trustee shall be entitled to conclusively rely on the delivery to it
of a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee or
agent on behalf of any such holder).  In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, 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 which it may 


 


62

















 


be required to make for the benefit of such person
pursuant to the terms of this Indenture pending judicial determination as to
the rights of such person to receive such payment


 


SECTION 15.07.    Trustee May Hold Senior Indebtedness. 
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness
at the time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 313 of the TIA or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.


 


Nothing in this Article shall apply to the claims of, or payments
to, the Trustee under or pursuant to Sections 7.03 and 8.06.


 


SECTION 15.08.    Rights of Holders of Senior Indebtedness Not
Impaired.  No right of any present or future holder of
any Senior Indebtedness to enforce the subordination herein shall at any time
or in any way be prejudiced or impaired by any act or failure to act on the
part of the Company 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.


 


SECTION 15.09.    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 and the
Holders of the Securities shall be entitled to conclusively rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, Custodian, receiver, 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 Senior Indebtedness 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 15.10.    Defeasance


 


.  The terms of this Article shall
not apply to payments from money or the proceeds of U.S. Government Obligations
held in trust by the Trustee for the payment of principal of and interest on
the Debt Securities pursuant to the provisions described in Section 12.02.


 


[Signature Page Follows]


 


63

















 


IN WITNESS WHEREOF, THE
MANITOWOC COMPANY, INC. has caused this Indenture to be executed by its
                                ,
and
                                                      
has caused this Indenture to be executed by one of its Officers, as of the day
and year first written above.


 


	
   

  	
  THE MANITOWOC COMPANY,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                                     ,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title

  	
   

  



 


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