EX-4.2






MERCER INTERNATIONAL INC.,

as Issuer




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee




 






INDENTURE

DATED AS OF OCTOBER 19, 2009

DEBT SECURITIES




 












 



i


TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.01 Definitions

	 	 	1	 
	Section 1.02 Other Definitions

	 	 	7	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act

	 	 	7	 
	Section 1.04 Rules of Construction

	 	 	7	 
	Section 1.05 Notice to Securityholders

	 	 	8	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	ISSUE, EXECUTION, REGISTRATION AND 
	 	 	 	 
	EXCHANGE OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 2.01 Amount Unlimited; Issuable in Series

	 	 	8	 
	Section 2.02 Form of Trustee’s Certificate of Authentication

	 	 	11	 
	Section 2.03 Form, Execution, Authentication, Delivery and Dating of Debt Securities

	 	 	11	 
	Section 2.04 Denominations; Record Date

	 	 	13	 
	Section 2.05 Exchange and Registration of Transfer of Debt Securities

	 	 	13	 
	Section 2.07 Mutilated, Destroyed, Lost or Stolen Debt Securities

	 	 	15	 
	Section 2.08 Cancellation

	 	 	15	 
	Section 2.09 Computation of Interest

	 	 	16	 
	Section 2.10 Debt Securities in Global Form

	 	 	16	 
	Section 2.11 CUSIP Numbers

	 	 	17	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	REDEMPTION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 3.01 Redemption of Debt Securities; Applicability of Article

	 	 	17	 
	Section 3.02 Notice of Redemption; Selection of Debt Securities

	 	 	17	 
	Section 3.03 Payment of Debt Securities Called for Redemption

	 	 	18	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	COVENANTS OF THE CORPORATION
	 	 	 	 
	 
	 	 	 	 
	Section 4.01 Payment of Principal, Premium, Interest and Additional Amounts

	 	 	19	 
	Section 4.02 Offices for Notices and Payments, etc.

	 	 	19	 
	Section 4.03 Provisions as to Paying Agent

	 	 	20	 
	Section 4.04 Statement by Officers as to Default

	 	 	21	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	SECURITYHOLDER LISTS AND REPORTS BY THE
	 	 	 	 
	CORPORATION AND THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 5.01 Securityholder Lists

	 	 	21	 












 



ii


	 	 	 	 	 
	 	 	Page
	Section 5.02 Preservation and Disclosure of Lists

	 	 	22	 
	Section 5.03 Reports by the Corporation

	 	 	22	 
	Section 5.04 Reports by the Trustee

	 	 	23	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	REMEDIES ON DEFAULT
	 	 	 	 
	 
	 	 	 	 
	Section 6.01 Events of Default

	 	 	23	 
	Section 6.02 Payment of Debt Securities on Default; Suit Therefor

	 	 	25	 
	Section 6.03 Application of Monies and Property Collected by Trustee

	 	 	27	 
	Section 6.04 Proceedings by Securityholders

	 	 	28	 
	Section 6.05 Remedies Cumulative and Continuing

	 	 	29	 
	Section 6.06 Direction of Proceedings

	 	 	29	 
	Section 6.07 Notice of Defaults

	 	 	30	 
	Section 6.08 Undertaking to Pay Costs

	 	 	30	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	CONCERNING THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 7.01 Duties and Responsibilities of Trustee

	 	 	30	 
	Section 7.02 Reliance on Documents, Opinions, etc.

	 	 	31	 
	Section 7.03 No Responsibility for Recitals, etc.

	 	 	33	 
	Section 7.04 Ownership of Debt Securities

	 	 	33	 
	Section 7.05 Monies to be Held in Trust

	 	 	33	 
	Section 7.06 Compensation and Expenses of Trustee

	 	 	34	 
	Section 7.07 Officers’ Certificate as Evidence

	 	 	34	 
	Section 7.08 Conflicting Interest of Trustee

	 	 	34	 
	Section 7.09 Eligibility of Trustee

	 	 	34	 
	Section 7.10 Resignation or Removal of Trustee

	 	 	35	 
	Section 7.11 Acceptance by Successor Trustee

	 	 	36	 
	Section 7.12 Successor by Merger, etc.

	 	 	37	 
	Section 7.13 Limitations on Rights of Trustee as Creditor

	 	 	37	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	CONCERNING THE SECURITYHOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 8.01 Action by Securityholders

	 	 	37	 
	Section 8.02 Proof of Execution by Securityholders

	 	 	38	 
	Section 8.03 Who Are Deemed Absolute Owners

	 	 	38	 
	Section 8.04 Corporation-Owned Debt Securities Disregarded

	 	 	38	 
	Section 8.05 Revocation of Consents; Future Securityholders Bound

	 	 	39	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	SECURITYHOLDERS’ MEETINGS
	 	 	 	 
	 
	 	 	 	 
	Section 9.01 Purposes of Meetings

	 	 	39	 
	Section 9.02 Call of Meetings by Trustee

	 	 	39	 
	Section 9.03 Call of Meetings by Corporation or Securityholders

	 	 	40	 
	Section 9.04 Qualification for Voting

	 	 	40	 












 




iii


	 	 	 	 	 
	 	 	Page
	Section 9.05 Regulations

	 	 	40	 
	Section 9.06 Voting

	 	 	41	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	SUPPLEMENTAL INDENTURES
	 	 	 	 
	 
	 	 	 	 
	Section 10.01 Supplemental Indentures Without Consent of Securityholders

	 	 	41	 
	Section 10.02 Supplemental Indentures With Consent of Securityholders

	 	 	42	 
	Section 10.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures

	 	 	43	 
	Section 10.04 Notation on Debt Securities

	 	 	44	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	 	 
	 
	 	 	 	 
	Section 11.01 Corporation May Consolidate, etc., on Certain Terms

	 	 	44	 
	Section 11.02 Successor Corporation Substituted

	 	 	44	 
	Section 11.03 Certificate to Trustee

	 	 	45	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
	 	 	 	 
	 
	 	 	 	 
	Section 12.01 Discharge of Indenture

	 	 	45	 
	Section 12.02 Satisfaction, Discharge and Defeasance of Debt Securities of Any Series

	 	 	46	 
	Section 12.03 Deposited Monies to be Held in Trust by Trustee

	 	 	47	 
	Section 12.04 Paying Agent to Repay Monies Held

	 	 	47	 
	Section 12.05 Return of Unclaimed Monies

	 	 	47	 
	 
	 	 	 	 
	ARTICLE 13
	 	 	 	 
	IMMUNITY OF INCORPORATORS, STOCKHOLDERS, 
	 	 	 	 
	OFFICERS AND DIRECTORS
	 	 	 	 
	 
	 	 	 	 
	Section 13.01 Indenture and Debt Securities Solely Corporate Obligations

	 	 	48	 
	 
	 	 	 	 
	ARTICLE 14
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 14.01 Benefits of Indenture Restricted to Parties and Securityholders

	 	 	48	 
	Section 14.02 Provisions Binding on Corporation’s Successors

	 	 	48	 
	Section 14.03 Addresses for Notices, etc.

	 	 	48	 
	Section 14.04 Evidence of Compliance with Conditions Precedent

	 	 	49	 
	Section 14.05 Legal Holidays

	 	 	49	 
	Section 14.06 Trust Indenture Act to Control

	 	 	49	 
	Section 14.07 Execution in Counterparts

	 	 	50	 
	Section 14.08 Governing Law

	 	 	50	 
	Section 14.09 Severability of Provisions

	 	 	50	 
	Section 14.10 Corporation Released from Indenture Requirements under Certain Circumstances

	 	 	50	 
	Section 14.11 Force Majeure

	 	 	50	 
	Section 14.12 U.S.A. Patriot Act

	 	 	51	 












 



iv


	 	 	 	 	 
	 	 	Page
	ARTICLE 15
	 	 	 	 
	SINKING FUNDS
	 	 	 	 
	 
	 	 	 	 
	Section 15.01 Applicability of Article

	 	 	51	 
	Section 15.02 Satisfaction of Sinking Fund Payments with Debt Securities

	 	 	51	 
	Section 15.03 Redemption of Debt Securities for Sinking Fund

	 	 	52	 
	 
	 	 	 	 
	ARTICLE 16
	 	 	 	 
	REPAYMENT AT THE OPTION OF HOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 16.01 Applicability of Article

	 	 	52	 
	Section 16.02 Repayment of Debt Securities

	 	 	52	 
	Section 16.03 Exercise of Option; Notice

	 	 	52	 
	Section 16.04 Debt Securities Payable on the Repayment Date

	 	 	53	 
	 
	 	 	 	 
	ARTICLE 17
	 	 	 	 
	SUBORDINATION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 17.01 Applicability of Article; Agreement To Subordinate

	 	 	53	 
	Section 17.02 Liquidation, Dissolution, Bankruptcy

	 	 	54	 
	Section 17.03 Default on Senior Indebtedness

	 	 	54	 
	Section 17.04 Acceleration of Payment of Debt Securities

	 	 	55	 
	Section 17.05 When Distribution Must Be Paid Over

	 	 	55	 
	Section 17.06 Subrogation

	 	 	55	 
	Section 17.07 Relative Rights

	 	 	55	 
	Section 17.08 Subordination May Not Be Impaired by Corporation

	 	 	56	 
	Section 17.09 Rights of Trustee and Paying Agent

	 	 	56	 
	Section 17.10 Distribution or Notice to Representative

	 	 	56	 
	Section 17.11 Article Seventeen Not to Prevent Defaults or Limit Right to Accelerate

	 	 	56	 
	Section 17.12 Trustee Entitled to Rely

	 	 	57	 
	Section 17.13 Trustee to Effectuate Subordination

	 	 	57	 
	Section 17.14 Trustee Not Fiduciary for Holders of Senior Indebtedness

	 	 	57	 
	Section 17.15 Reliance by Holders of Senior Indebtedness on Subordination Provisions

	 	 	57	 
	 
	 	 	 	 
	ARTICLE 18
	 	 	 	 
	CONVERSION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 18.01 Applicability of Article

	 	 	58	 
	Section 18.02 Right to Convert

	 	 	58	 
	Section 18.03 Conversion Procedures; Conversion Settlement

	 	 	58	 
	Section 18.04 Cash Payments in Lieu of Fractional Shares

	 	 	60	 
	Section 18.05 Conversion Price

	 	 	60	 
	Section 18.06 Adjustment to Conversion Price

	 	 	60	 
	Section 18.07 Effect of Reclassification, Consolidation, Merger or Sale

	 	 	63	 
	Section 18.08 Taxes on Shares Issued

	 	 	64	 












 



v


	 	 	 	 	 
	 	 	Page
	Section 18.09 Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of
Shares of Common Stock

	 	 	64	 
	Section 18.10 Trustee Not Responsible

	 	 	64	 
	Section 18.11 Notice to Holders Prior to Certain Actions

	 	 	65	 
	Section 18.12 Covenant to Reserve Shares

	 	 	66	 












 






     Reconciliation and tie of this Indenture relating to Trust Indenture Act of 1939, as amended.



	 	 	 
	SECTION OF ACT	 	SECTION OF INDENTURE
	310(a)(1), (2)and (5)
	 	7.09
	310(a)(3) and (4)
	 	Not applicable
	310(b)
	 	7.08
	310(c)
	 	Not applicable
	311(a) and (b)
	 	7.13
	311(c)
	 	Not applicable
	312(a)
	 	5.01 and 5.02(a)
	312(b) and (c)
	 	5.02(b) and (c)
	313(a) and (b)
	 	5.04(a)
	313(c)
	 	5.04(a)
	313(d)
	 	5.04(b)
	314(a)
	 	5.03
	314(b)
	 	Not applicable
	314(c)(1) and (2)
	 	14.04
	314(c)(3)
	 	Not applicable
	314(d)
	 	Not applicable
	314(e)
	 	14.04
	315(a), (c) and (d)
	 	7.01
	315(b)
	 	6.07
	315(e)
	 	6.08
	316(a)(1)
	 	6.06
	316(a)(2)
	 	Omitted
	316(a) last sentence
	 	8.04
	316(b)
	 	6.04
	316(c)
	 	9.02
	317(a)
	 	6.02
	317(b)
	 	4.03
	318(a)
	 	14.06






     Note: This reconciliation and tie shall not, for any purposes, be deemed to be a part of the
Indenture.










 



 




     INDENTURE,
dated as of the 19th day of October, 2009, between Mercer International Inc., a
Washington corporation (the “Corporation”) and Wells Fargo Bank, National Association, a
national banking association organized and existing under the laws of the United States, as trustee
hereunder (the “Trustee”).



RECITALS OF THE CORPORATION




     WHEREAS, the Corporation deems it necessary or appropriate to issue from time to time for its
lawful purposes securities evidencing its unsecured senior or unsecured subordinated indebtedness
(herein called the “Debt Securities” or, in the singular, “Debt Security”) and has
duly authorized the execution and delivery of this Indenture to provide for the issuance of the
Debt Securities in one or more series, unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times and to have such other provisions as shall be established
as hereinafter provided.



     AND WHEREAS, the Corporation represents that all acts by it necessary to constitute a valid
indenture and agreement according to its terms have been done and performed, and the execution of
this Indenture has in all respects been duly authorized by the Corporation, and the Corporation, in
the exercise of legal rights and power in it vested, is executing this Indenture.



     NOW, THEREFORE, in order to declare the terms and conditions upon which the Debt Securities
are authenticated, issued and received, and in consideration of the premises, of the purchase and
acceptance of the Debt Securities by the Holders thereof the Corporation covenants and agrees with
the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of
the Debt Securities or any series thereof, as follows:



ARTICLE 1

DEFINITIONS




Section 1.01 Definitions.




     The terms defined in this Section (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. All other terms used in this
Indenture which are defined in the Trust Indenture Act or which are by reference therein defined in
the Securities Act shall have the meanings (except as herein otherwise expressly provided or unless
the context otherwise clearly requires) assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force at the date of this Indenture as originally executed. The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a
whole, including any exhibits hereto, and not to any particular Article, Section or other
subdivision. Certain terms used wholly or principally within an Article of this Indenture may be
defined in that Article.



     “Additional Amounts” shall mean any additional amounts which are required by a Debt
Security or by or pursuant to a Board Resolution under circumstances specified therein, to be paid
by the Corporation in respect of certain taxes, assessments or governmental charges









 



2



imposed on certain Holders of Debt Securities and which are owing to such Holders of Debt
Securities.



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



     “Authorized Newspaper” shall mean a newspaper in an official language of the country
of publication of general circulation in the place in connection with which the term is used. If
it shall be impracticable to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or given with the approval
of the Trustee shall constitute a sufficient publication of such notice.



     “Board of Directors” shall mean the Board of Directors of the Corporation or any
committee established by the Board of Directors, as the context requires.



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



     “Business Day” shall mean, with respect to any Debt Security, a day (other than a
Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts
are payable as specified on the face of the form of such Debt Security, is neither a legal holiday
nor a day on which banking institutions are authorized or required by law, regulation or executive
order to close.



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



     “Corporate Trust Office” shall mean the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, which office at the
date hereof is located at 707 Wilshire Blvd., 17th Floor, Los Angeles, CA 90017
(Attention: Corporate Trust Services).



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



     “Corporation Order” shall mean any written request, order or confirmation to the
Trustee signed by a person designated pursuant to Section 2.03, which may be transmitted by telex,
by telecopy.









 



3


     “Debt” of any Person at any date shall mean an obligation created or assumed by such
Person for the repayment of borrowed money and any guarantee thereof.



     “Debt Securities” or “Debt Security” shall have the meaning stated in the
first recital of this Indenture and more particularly means any Debt Securities or Debt Security,
as the case may be, of any series authenticated and delivered under this Indenture.



     “Default” shall mean any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default specified as such in Section 6.01.



     “Depositary” shall mean, with respect to the Debt Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the Person designated as
Depositary by the Corporation pursuant to Section 2.01 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, “Depositary” as used with respect to the Debt Securities of any such
series shall mean the Depositary with respect to the Debt Securities of that series.



     “Designated Senior Indebtedness” shall mean any Senior Indebtedness existing as of the
date of this Indenture or in which the instrument creating or evidencing the Indebtedness, or any
related agreements or documents to which the Corporation is a party, expressly provides that such
Indebtedness is “Designated Senior Indebtedness” for purposes of this Indenture (provided that the
instrument, agreement or other document creating or evidencing the Debt may place limitations and
conditions on the right of the Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness).



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and any
successor statute.



     “GAAP” shall mean the generally accepted accounting principles in the United States of
America as in effect from time to time, including those principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.



     “Global Security” shall mean a Debt Security evidencing all or part of a series of
Debt Securities issued to the Depository or its nominee for such series in accordance with
Section 2.03.



     “Holder”, “Holder of Debt Securities”, “Securityholder” or other
similar terms, shall mean the person in whose name at the time such Debt Security is registered on
the registration books kept for that purpose in accordance with the terms hereof.



     “Indenture” shall mean this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof.









 



4


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



     “Issue Date” shall mean, with respect to any Debt Security, the date such Debt
Security is authenticated pursuant to Section 2.03.



     “Maturity Date” when used with respect to any Debt Security, shall mean the date on
which the principal of such Debt Security becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration or acceleration, call for redemption or exchange,
prepayment at the option of the Holder or otherwise.



     “Officers’ Certificate” shall mean a certificate signed on behalf of the Corporation
(and without personal liability), and complying with Section 14.04, by the President and Chief
Executive Officer or its Chief Financial Officer or any Vice President and by the Secretary or any
Assistant Secretary.



     “Opinion of Counsel” shall mean an opinion in writing, complying with Section 14.04,
signed by legal counsel who may be an employee of or counsel to the Corporation or who may be other
counsel acceptable to the Trustee.



     “Original Issue Discount Securities” shall mean any Debt Securities that are initially
sold at a discount from the principal amount thereof and that provide upon an Event of Default for
declaration of an amount less than the principal amount thereof to be due and payable upon
acceleration thereof.



     “Outstanding” when used with reference to Debt Securities, shall, subject to the
provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Debt Securities
authenticated and delivered by the Trustee under this Indenture, except




	 	(a)	 	Debt Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
	 
	 	(b)	 	Debt Securities, or portions thereof, for the payment or redemption of which
monies in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Corporation) or shall have been set aside and
segregated in trust by the Corporation (if the Corporation shall act as its own Paying
Agent), provided, that if such Debt Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as provided in Article Three,
or provisions satisfactory to the Trustee shall have been made for giving such notice;
and
	 
	 	(c)	 	Debt Securities in lieu of and in substitution for which other Debt Securities
shall have been authenticated and delivered pursuant to the terms of Article Two,
unless proof satisfactory to the Trustee is presented that any such Debt Securities are
held by bona fide Holders in due course.










 



5







     “Paying Agent” shall mean initially the Trustee and, subsequently, any other paying
agent appointed by the Corporation from time to time in respect of the Debt Securities.



     “Permitted Junior Securities” means Shares of Common Stock or debt securities that are
subordinated to Senior Indebtedness to at least the same extent as, or to a greater extent than,
the Subordinated Debt Securities.



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



     “Place of Payment” when used with respect to the Debt Securities of any series, means
the place or places where the principal of (and premium, if any) and interest, if any, (and
Additional Amounts, if any) on the Debt Securities of that series are payable.



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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the
Debt Securities of any series means the date specified for that purpose as contemplated by Sections
2.01 and 2.04.



     “Remarketing Entity” when used with respect to Debt Securities of any series that are
repayable at the option of the Holders thereof before their Stated Maturity, means any person
designated by the Corporation to purchase any such Debt Securities.



     “Repayment Date” when used with respect to any Debt Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such repayment pursuant to
this Indenture.



     “Repayment Price” when used with respect to any Debt Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is to be repaid
pursuant to this Indenture.



     “Representative” shall mean the trustee, agent or representative (if any) for an issue
of Senior Indebtedness.



     “Rights” has the meaning specified in Section 18.06(c).



     “Securities Act of 1933” shall mean the Securities Act of 1933, as amended, and any
successor statute.



     “Senior Indebtedness” with respect to the Corporation shall mean the principal of,
premium, if any, interest (including any interest accruing after the commencement of any bankruptcy
or similar proceeding, whether or not a claim for post-petition interest is allowed as a claim in
the proceeding), and rent payable on or in connection with, and all fees, costs, expenses









 



6



and other amounts accrued or due on or in connection with, Debt of the Corporation whether secured
or unsecured, absolute or contingent, due or to become due, outstanding on the date of this
Indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the
Corporation, including all deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to, the foregoing. Senior Indebtedness does not include: (i) Debt
that expressly provides that such Debt shall not be senior in right of payment to the Subordinated
Debt Securities issued pursuant to this Indenture or expressly provides that such Debt is pari
passu or junior to the Subordinated Debt Securities issued pursuant to this Indenture; (ii) any
Debt to any of the Corporation’s Subsidiaries, other than Debt to the Corporation’s Subsidiaries
arising by reason of guarantees by the Corporation of Debt of such Subsidiary to a Person that is
not a Subsidiary of the Corporation; (iii) any Debt of or amounts owed by the Corporation for
compensation to employees of the Corporation, for goods or materials purchased by the Corporation
in the ordinary course of business, or for services; (iv) any liability for federal, state or local
taxes or other taxes, owed or owing by the Corporation; (v) the portion of any Debt that is
incurred in violation of this Indenture; and (vi) the Subordinated Debt Securities issued pursuant
to this Indenture.



     “Shares of Common Stock” means, when used with reference to the capital stock of the
Corporation, the class of stock which, at the date of execution of this Indenture, is designated as
shares of common stock of the Corporation and stock of any class or classes into which such shares
of common stock or any such other class may thereafter be changed or reclassified.



     “Significant Subsidiary” shall mean any Subsidiary of the Corporation that would be a
“significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant
to the Exchange Act, as such Regulation is in effect on the date of this Indenture.



     “Stated Maturity” when used with respect to any Debt Security or any installment 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.



     “Subsidiary” shall mean, with respect to any Person, any corporation or other entity
of which more than 50% of the outstanding stock or other beneficial interests having by the terms
thereof ordinary voting power to elect a majority of the Board of Directors or other governing body
of such corporation or other entity (irrespective of whether or not at the time stock or other
beneficial interests of another class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the time owned by the
Corporation, or by one or more Subsidiaries, or by the Corporation and one or more Subsidiaries.



     “Trust Indenture Act of 1939” shall mean the Trust Indenture Act of 1939, as amended,
and any successor statute.



     “Trust Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such









 



7



person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



     “Trustee” initially shall mean Wells Fargo Bank, National Association and any other
Person or Persons appointed as such from time to time pursuant to Section 7.10, and, subject to the
provisions of Article 7, includes its or their successors or assigns.



     “United States” shall mean the United States of America (including the states thereof
and the District of Columbia), its territories, its possessions and any other areas subject to its
jurisdiction.



     “U.S. Dollar” or “$” means such currency of the United States of America as at
the time shall be legal tender for the payment of public and private debts.



Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Closing Price”
	 	 	18.06	 
	“Conversion Price”
	 	 	18.05	 
	“Convertible Securities”
	 	 	18.01	 
	“Debt Security Register”
	 	 	2.05	 
	“Event of Default”
	 	 	6.01	 
	“Subordinated Debt Securities”
	 	 	17.01	 






Section 1.03 Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.



     All terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust
Indenture Act reference to another statute or defined by Commission rule under the Trust Indenture
Act have the meanings so assigned to them.



Section 1.04 Rules of Construction.




     Unless the context otherwise requires:



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



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



     (c) “or” is not exclusive;



     (d) words in the singular include the plural, and in the plural include the singular;









 



8


     (e) provisions apply to successive events and transactions; and



     (f) references to sections of or rules under the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the Commission from time to time.



Section 1.05 Notice to Securityholders.




     Except as otherwise expressly provided herein, where this Indenture provides for notice to
Holders of Debt Securities of any event, such notice shall be sufficiently given if in writing and
delivered electronically or mailed, first class, postage prepaid, to each Holder at such Holder’s
address as it appears in the Debt Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for such notice.



     Neither the failure to send such notice nor any defect in any notice so sent to any particular
Holder of a Debt Security shall affect the sufficiency of such notice with respect to other Holders
of Debt Securities.



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders of Debt Securities shall be
filed with the Trustee, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.



ARTICLE 2

ISSUE, EXECUTION, REGISTRATION AND 

EXCHANGE OF DEBT SECURITIES




Section 2.01 Amount Unlimited; Issuable in Series.




     The aggregate principal amount of Debt Securities that may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.



     The Debt Securities may be issued in one or more series. There shall be established, without
the approval of any Holders, in or pursuant to a Board Resolution, and set forth in or established
in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any
series, any or all of the following:




	 	(1)	 	the designation of the Debt Securities of the series (which shall distinguish
the Debt Securities of the series from all other Debt Securities);
	 
	 	(2)	 	whether the Debt Securities of the series are Subordinated Debt Securities and
the terms related thereto including the definitions of Senior Indebtedness and
Designated Senior Indebtedness which shall be applicable to the Subordinated Debt
Securities;










 



9


	 	(3)	 	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 the series pursuant to Section 2.05, 2.06,
2.07, 3.02, 10.04, 16.03, or 18.03);
	 
	 	(4)	 	the date or dates on which the principal of (and premium, if any) on the Debt
Securities of the series are payable;
	 
	 	(5)	 	the rate or rates, which may be fixed or variable, at which the Debt Securities
of the series shall bear interest, if any, and if the rate or rates are variable, the
manner of calculation thereof, 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 determination of Holders of such Debt Securities to whom interest
is payable on any Interest Payment Date;
	 
	 	(6)	 	the place or places (in addition to such place or places specified in this
Indenture) where the principal of (and premium, if any), interest, if any, and
Additional Amounts, if any, on Debt Securities of the series shall be payable;
	 
	 	(7)	 	the right, if any, of the Corporation to redeem Debt Securities of the Series,
in whole or in part, at its option and the period or periods within which, the price or
prices at which and the terms and conditions upon which Debt Securities of the series
may be redeemed pursuant to any sinking fund or otherwise;
	 
	 	(8)	 	the obligation, if any, of the Corporation to redeem, purchase or repay Debt
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon which Debt
Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
	 
	 	(9)	 	if the amount of principal of and interest on the Debt Securities of the series
may be determined with reference to an index based on a currency or currencies other
than that in which the Debt Securities of the series are denominated, the manner in
which such amounts shall be determined;
	 
	 	(10)	 	the denominations in which Debt Securities of the series shall be issuable, if
other than U.S. $1,000 or integral multiples thereof;
	 
	 	(11)	 	if other than the principal amount thereof, the portion of the principal amount
of Debt Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof or which the Trustee shall be entitled to claim
pursuant to Section 6.02;
	 
	 	(12)	 	whether the Debt Securities of the series shall be issued in whole or in part
in the form of one or more Global Securities and, in such case, the Depository for such










 



10


	 	 	 	Global Security or Debt Securities and whether any Global Securities of the series
are to be issuable initially in temporary form and whether any Global Securities of
the series are to be issuable in definitive form and, if so, whether beneficial
owners of interests in any such definitive Global Security may exchange such
interests for Debt Securities of such series and of like tenor of any authorized
form and denomination, and the circumstances under which and the place or places
where any such exchanges may occur, if other than in the manner provided in Section
2.05;
	 
	 	(13)	 	whether and under what circumstances the Corporation will pay Additional
Amounts on the Debt Securities of the series in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Corporation will have
the option to redeem such Debt Securities rather than pay such Additional Amounts;
	 
	 	(14)	 	the provisions, if any, for the defeasance of the Debt Securities of the
series;
	 
	 	(15)	 	if the Debt Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt Security of such
series) only upon receipt of certain certificates or other documents or satisfaction of
other conditions, the form and terms of such certificates, documents or conditions;
	 
	 	(16)	 	except as otherwise provided herein, any trustees, depositories, authenticating
or paying agents, transfer agents, conversion agents, registrars or any other agents
with respect to the Debt Securities of such series;
	 
	 	(17)	 	the percentage of their principal amount at which the Debt Securities will be
issued;
	 
	 	(18)	 	any securities exchanges on which the Debt Securities will be listed;
	 
	 	(19)	 	whether there are any limitations or restrictions on the incurrence of
additional debt, liens, leaseback transactions or other such provisions;
	 
	 	(20)	 	whether the Debt Securities of the series are Convertible Securities and the
terms related thereto including the Conversion Price and the date on which the right to
convert expires; and
	 
	 	(21)	 	any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture but which may modify or delete any provisions of this
Indenture insofar as it applies to such series).





     All Debt Securities of any one series shall be substantially identical except (i) as to
denomination, and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set
forth in any such indenture supplemental hereto.



     If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
















 





11



any Assistant Secretary of the Corporation and delivered to the Trustee at the same time as or
prior to the delivery of the supplemental indenture setting forth the terms of the series.




Section 2.02 Form of Trustee’s Certificate of Authentication.




     The Trustee’s certificate of authentication on all Debt Securities authenticated by the
Trustee shall be substantially in the following form:



{FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION}



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




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee,

 	 
	 	By:  	 	 
	 	 	      Authorized Signatory 	 
	 	 	 	 
	 



Section 2.03 Form, Execution, Authentication, Delivery and Dating of Debt Securities.





     The Debt Securities of each series shall be in the forms approved from time to time
established in one or more indentures supplemental hereto, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Corporation may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any securities exchange on which
the Debt Securities may be listed, or to conform to usage.



     Each Debt Security shall be executed on behalf of the Corporation by its President and Chief
Executive Officer or its Chief Financial Officer or any Vice President and the Secretary or any
Assistant Secretary. Such signatures may be the manual or facsimile signatures of the present or
any future such officers and may be imprinted or otherwise reproduced on the Debt Securities.



     Each Debt Security bearing the manual or facsimile signatures of individuals who were at any
time the proper officers of the Corporation shall bind the Corporation, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Debt Security. At any time and from time to time after the execution and delivery
of this Indenture, the Corporation may deliver Debt Securities of any series executed by the
Corporation and delivered to the Trustee for authentication, together with a Corporation Order for
the authentication and delivery of such Debt Securities, and the Trustee in accordance with such
Corporation Order shall authenticate and deliver such Debt Securities. In authenticating such Debt
Securities and accepting the additional responsibilities under this Indenture in relation to such
Debt Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:









 



12


     (a) a copy of any resolution or resolutions of the Board of Directors, certified by the
Secretary of the Corporation, authorizing the terms of issuance of any series of Debt Securities;



     (b) an executed supplemental indenture, if any;



     (c) an Officers’ Certificate complying with Section 14.04; and



     (d) an Opinion of Counsel stating:




     (i) that the form of such Debt Securities has been established by or pursuant to Board
Resolution or by a supplemental indenture as permitted by Section 2.01 in conformity with
the provisions of this Indenture;




     (ii) that the terms of such Debt Securities have been established by or pursuant to
Board Resolution or by a supplemental indenture as permitted by Section 2.01 in conformity
with the provisions of this Indenture; and




     (iii) that each such Debt Security, when authenticated and delivered by the Trustee and
issued by the Corporation in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Corporation, enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other laws of general applicability
relating to or affecting the enforcement of creditors’ rights and to general equity
principles, whether applied in a proceeding at law or in equity.



     Unless otherwise provided in the form of Debt Security for any series, each Debt Security
shall be dated the date of its authentication.



     The Trustee shall not be required to authenticate such Debt Securities if the issue of such
Debt Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Debt Securities and the Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.



     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 and is
entitled to the benefits of this Indenture.



     If the Corporation shall establish pursuant to Section 2.01 that the Debt Securities of a
series are to be issued in whole or in part in the form of a Global Security, then the Corporation
shall execute and the Trustee shall in accordance with this Section and the Corporation Order with
respect to such series authenticate and deliver the Global Security that: (i) shall represent and
shall be denominated in an aggregate amount equal to the aggregate principal amount of outstanding
Debt Securities of such series to be represented by the Global Security; (ii) shall be registered,
if in registered form, in the name of the Depository for such Global Security or the









 



13



nominee of
such Depository; and (iii) shall be delivered by the Trustee to such Depository or pursuant to such
Depository’s instructions.



     Each Depository designated pursuant to Section 2.01 for a Global Security in registered form
must, at the time of its designation and at all times while it serves as Depository, be a clearing
agency registered under the Exchange Act and any other applicable statute or regulation.



Section 2.04 Denominations; Record Date.




     Unless otherwise provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable in such denominations as shall be specified or contemplated by
Section 2.01. In the absence of any such specification with respect to any series, such Debt
Securities shall be issuable in the denominations of $1,000 and any integral multiple thereof.



     The term “record date” as used with respect to an Interest Payment Date (except a date for
payment of defaulted interest) shall mean such day or days as shall be specified in the terms of
the Debt Securities of any particular series as contemplated by Section 2.01; provided, however,
that in the absence of any such provisions with respect to any series, such term shall mean: (i)
the last day of the calendar month next preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of a calendar month; or (ii) the fifteenth day of a calendar
month next preceding such Interest Payment Date if such Interest Payment Date is the first day of
the calendar month.



     The person in whose name any Debt Security is registered at the close of business on the
Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the
interest payable and Additional Amounts, if any, payable on such Interest Payment Date
notwithstanding the cancellation of such Debt Security upon any transfer or exchange thereof
subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however,
that if and to the extent the Corporation shall default in the payment of the interest and
Additional Amounts, if any, due on such Interest Payment Date, such defaulted interest and
Additional Amounts, if any, shall be paid to the persons in whose names outstanding Debt Securities
are registered on a subsequent record date established by written notice given by sent by or on
behalf of the Corporation to the Holders of Debt Securities of the series in default not less than
15 days preceding such subsequent record date, such record date to be not less than 5 days
preceding the date of payment of such defaulted interest.



Section 2.05 Exchange and Registration of Transfer of Debt Securities.




     Debt Securities of any series (other than a Global Security) may be exchanged for a like
aggregate principal amount of Debt Securities of other authorized denominations of such series.
Debt Securities to be exchanged shall be surrendered at the office or agency to be designated and
maintained by the Corporation for such purpose in accordance with the provisions of Section 4.02,
and the Corporation shall execute and register and the Trustee shall authenticate and deliver in
exchange therefor the Debt Security or Debt Securities that the Holder making the exchange shall
been titled to receive.



     The Corporation or its designated agent (the “Security Registrar”) shall keep, at such office
or agency, a Security Register (the “Debt Security Register”) in which, subject to such









 



14



reasonable
regulations as it may prescribe, the Corporation shall register Debt Securities and shall register
the transfer of Debt Securities as provided in this Article Two. The Debt Security Register shall
be in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the Debt Security Register shall be open
for inspection by the Trustee. Upon due presentment for registration of transfer of any Debt
Security of a particular series at such office or agency, the Corporation shall execute and the
Corporation or the Security Registrar shall register and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Debt Security or Debt Securities of such series
for an equal aggregate principal amount.



     All Debt Securities presented for registration of transfer or for exchange, redemption or
payment, as the case may be, shall (if so required by the Corporation or the Trustee) be duly
endorsed by, or be accompanied by, a written instrument or instruments of transfer in a form
satisfactory to the Corporation and the Trustee duly executed by the Holder or his, her or its
attorney duly authorized in writing.



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



     The Corporation shall not be required to exchange or register a transfer of: (i) any Debt
Securities of any series for a period of 15 days next preceding any selection of Debt Securities of
such series to be redeemed; or (ii) any Debt Securities of any such series selected for redemption
except in the case of any such series to be redeemed in part, the portion thereof not to be so
redeemed.



     The terms and conditions for the transfer of a Global Security of a series in addition to
those set forth in Section 2.10 hereof shall be set forth in the applicable supplemental indenture
for such series of Debt Securities.



Section 2.06 Temporary Debt Securities.




     Pending the preparation of definitive Debt Securities of any series, the Corporation may
execute and on receipt of a Corporation Order, the Trustee shall authenticate and deliver temporary
Debt Securities of such series (printed or lithographed). Temporary Debt Securities of any series
shall be issuable in any authorized denominations, and in the form approved from time to time by or
pursuant to a Board Resolution but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the Corporation. Every
temporary Debt Security shall be executed by the Corporation and authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect, as the definitive
Debt Securities. Without unnecessary delay the Corporation shall execute and furnish definitive
Debt Securities of such series and thereupon any or all temporary Debt Securities of such series
may be surrendered in exchange therefor without charge at the office or agency to be designated and
maintained by the Corporation for such purpose, in accordance with the provisions of Section 4.02,
and the Trustee shall authenticate and deliver in exchange for such temporary Debt Securities an
equal aggregate principal amount of definitive Debt Securities of the same series of authorized
denominations. Until so exchanged









 



15



the temporary Debt Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Debt Securities of such series.



Section 2.07 Mutilated, Destroyed, Lost or Stolen Debt Securities.




     In case any temporary or definitive Debt Security of any series shall become mutilated or be
destroyed, lost or stolen, the Corporation in the case of a mutilated Debt Security may, in its
discretion, execute, and upon receipt of a Corporation Order the Trustee shall authenticate and
deliver, a new Debt Security of the same series as the mutilated, destroyed, lost or stolen Debt
Security of the same series as the mutilated, destroyed, lost or stolen Security bearing a number
not contemporaneously outstanding, in exchange and substitution for the mutilated Debt Security. In
every case the applicant for a substituted Debt Security shall furnish to the Corporation and to
the Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the
Corporation and to the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Debt Security and of the ownership thereof. Upon the issuance of any substituted Debt
Security, the Corporation 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 Corporation may, instead of issuing a substituted Debt
Security, pay or authorize the payment of the same (without surrender thereof except in the case of
a mutilated Debt Security) if the applicant for such payment shall furnish the Corporation and the
Trustee with such security or indemnity as they may require to save them harmless and, in case of
destruction loss or theft, evidence to the satisfaction of the Corporation and 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 by virtue of
the fact that any Debt Security is destroyed, lost or stolen shall, with respect to such Debt
Security, constitute an additional contractual obligation of the Corporation, 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 shall, to the extent permitted by law, preclude any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.



Section 2.08 Cancellation.




     Unless otherwise provided with respect to a series of Debt Securities, all Debt Securities
surrendered for payment, redemption, repayment, transfer, exchange or credit against any sinking
fund payment pursuant to this Indenture, shall, if surrendered to the Paying Agent to be delivered
to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it,
and no Debt Securities shall be issued in lieu thereof except as expressly









 



16



permitted by any of the
provisions of this Indenture. The Trustee shall cancel such Debt Securities and deliver a
certificate of cancellation to the Corporation.



Section 2.09 Computation of Interest.




     Except as otherwise specified as contemplated by Section 2.01 for Debt Securities of any
series, interest on the Debt Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.



Section 2.10 Debt Securities in Global Form.




          (a) If the Corporation shall establish pursuant to Section 2.01 that the Debt Securities of a
particular series are to be issued as a Global Security, then the Corporation shall execute and the
Trustee shall, in accordance with Section 2.03, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Debt Securities of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be held by the Trustee as custodian for the Depositary
or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the
following effect: “Except as otherwise provided in Section 2.10 of the Indenture, this Security may
be transferred, in whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary.”




          (b) Notwithstanding the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Corporation or to a nominee of such successor Depositary.




          (c) If at any time the Depositary for a series of the Debt Securities notifies the Corporation
that it is unwilling or unable to continue as Depositary for such series or if at any time the
Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not
appointed by the Corporation within 90 days after the Corporation receives such notice or becomes
aware of such condition, as the case may be, or if an Event of Default has occurred and is
continuing and the Corporation has received a request from the Depositary, this Section 2.10 shall
no longer be applicable to the Securities of such series and the Corporation will execute, and
subject to Section 2.03, the Trustee will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange
for such Global Security upon the instruction of the Depositary. In addition, the Corporation may
at any time determine that the Debt Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.10 shall no longer apply to the Debt
Securities of such series. In such event the Corporation will execute and, subject to Section
2.03, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the
Corporation, will authenticate and deliver the Debt Securities of
such series in definitive
registered form without coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in










 



17

 definitive registered
form without coupons, in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Debt Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.10(c) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debt Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.




Section 2.11 CUSIP Numbers.




     The Corporation, 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 Corporation will promptly notify the Trustee in writing of any change in the
CUSIP numbers.



ARTICLE 3

REDEMPTION OF DEBT SECURITIES




Section 3.01 Redemption of Debt Securities; Applicability of Article.




     Redemption of Debt Securities of any series as permitted or required by the terms thereof
shall be made in accordance with such terms and this Article; provided, however, that if any
provision of any series of Debt Securities shall conflict with any provision of this Article, the
provision of such series of Debt Securities shall govern.



     The notice date for a redemption of Debt Securities shall mean the date on which notice of
such redemption is given in accordance with the provisions of Section 3.02 hereof.



Section 3.02 Notice of Redemption; Selection of Debt Securities.




     The election of the Corporation to redeem any Debt Securities shall be evidenced by an
Officers’ Certificate. In case the Corporation 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 the terms and
provisions applicable to such series, it shall fix a Redemption Date and shall send or cause to be
sent a notice of such redemption at least 30 and not more than 60 days prior to the Redemption Date
to the Holders of the Debt Securities of such series to be redeemed as a whole or in part, at their
last addresses as the same appear on the Debt Security Register. Any notice that is sent in the
manner herein provided shall be conclusively presumed to have been duly given, whether or not the
Holder shall have received such notice. In any case, failure to give notice, or any defect in the
notice to the Holder of any Debt Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any other Debt Security
of such series.









 



18


     Each such notice of redemption shall specify the provisions of such Debt Securities under
which such redemption is made, that the conditions precedent, if any, to such redemption have
occurred, shall describe the same and the Redemption Date, the Redemption Price, the Place of
Payment, that payment will be made upon presentation and surrender of such Debt Securities,
that interest and Additional Amounts, if any, accrued to the Redemption Date will be paid as
specified in said notice, and that on and after said date interest, if any, thereon or on the
portions thereof to be redeemed will cease to accrue. 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 upon surrender of such Debt Security, a new Debt Security or Debt
Securities in principal amount equal to the unredeemed portion thereof will be issued of the same
series.



     Not later than 11:00 A.M. New York City time on the Redemption Date specified in the notice of
redemption given for Debt Securities, the Corporation will deposit immediately available funds for
the redemption of any Debt Security (or any portion thereof) called for redemption with the Trustee
or with one or more Paying Agents an amount of money sufficient to redeem on the Redemption Date
all the Debt Securities or portions of Debt Securities so called for redemption at the Redemption
Price, together with interest, if any, and Additional Amounts, if any, accrued to the Redemption
Date. The Corporation will give the Trustee notice of each redemption at least 45 days but not
more than 60 days prior to the Redemption Date (unless a shorter notice is acceptable to the
Trustee) as to the aggregate principal amount of Debt Securities to be redeemed.



     If fewer than all of the Debt Securities of a series are to be redeemed, the Trustee shall
select, pro rata or by lot or in such other manner as it shall deem reasonable and fair, the
numbers of the Debt Securities to be redeemed in whole or in part.



Section 3.03 Payment of Debt Securities Called for Redemption.




     If notice of redemption has been given as above 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 of Payment stated in such notice at the Redemption Price, together with
interest, if any, and Additional Amounts, if any, accrued to the Redemption Date, and on and after
said date (unless the Corporation shall default in the payment of such Debt Securities at the
Redemption Price, together with interest, if any, and Additional Amounts, if any, accrued to said
date) interest on the Debt Securities or portions of Debt Securities so called for redemption shall
cease to accrue. On presentation and surrender of such Debt Securities subject to redemption at
said Place of Payment in said notice specified, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Corporation at the Redemption Price, together with
interest, if any, and Additional Amounts, if any, accrued thereon to the Redemption Date.
Interest, if any, and Additional Amounts, if any, maturing on or prior to the Redemption Date shall
continue to be payable (but without interest thereon unless the Corporation shall default in
payment thereof) to the Holders thereof registered as such on the Debt Security Register on the
relevant record date subject to the terms and provisions of Section 2.04. At the option of the
Corporation, payment may be made by check to (or to the order of) the Holders of the Debt
Securities or other persons entitled thereto against presentation and surrender of such Debt
Securities.









 



19


     Upon presentation of any Debt Security redeemed in part only, the Corporation shall execute,
and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the
Corporation, a new Debt Security or Debt Securities, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Debt Security so presented of the same
series; except that if a Global Security is so surrendered, the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Global Security so surrendered. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.



ARTICLE 4

COVENANTS OF THE CORPORATION




Section 4.01 Payment of Principal, Premium, Interest and Additional Amounts.




     The Corporation shall duly and punctually pay or cause to be paid the principal of (and
premium, if any), interest, if any, and Additional Amounts, if any, on each of the Debt Securities
at the place, at the respective times and in the manner provided in the terms of the Debt
Securities and in this Indenture. The interest on Debt Securities (other than a Global Security)
(together with any Additional Amounts) shall be payable only to the Holders thereof and at the
option of the Corporation may be paid by: (i) mailing checks for such interest payable to or upon
the order of such Holders at their last addresses as they appear on the Debt Security Register for
such Debt Securities; or (ii) in the case of Holders of U.S. $10,000,000 or more in aggregate
principal amount of such Debt Securities, by wire transfer of immediately available funds, but only
if the Trustee has received wire transfer instructions in writing not less than 15 days prior to
the applicable Interest Payment Date. Notwithstanding the foregoing, so long as the Debt Securities
of a series are registered in the name of a Depositary or its nominee, all payments hereon
shall be made by wire transfer in immediately available funds to the account of the Depositary or
Wells Fargo Bank, National Association.



Section 4.02 Offices for Notices and Payments, etc.




     As long as any of the Debt Securities of a series remain outstanding, and only if required by
the relevant regulatory body, the Corporation shall designate and maintain an office or agency
where the Debt Securities of such series may be presented for registration of transfer and for
exchange as provided in this Indenture, an office or agency where notices and demands to or upon
the Corporation in respect of the Debt Securities of such series or of this Indenture may be
served, and an office or agency where the Debt Securities of such series may be presented for
payment. The Corporation shall give to the Trustee notice of the location of each such office or
agency and of any change in the location thereof. In case the Corporation shall fail to maintain
any such office or agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be served at the Corporate
Trust Office of the Trustee and the Corporation hereby appoints the Trustee as its agent to receive
all such presentations, notices and demands.









 



20


     The Corporation hereby initially designates Wells Fargo Bank, National Association, located at
its office at Wells Fargo Bank, National Association
Corporate Trust Services
MAC N9311-110
625 Marquette Avenue
Minneapolis, MN 55479, as the Security Registrar and as the office or agency of the Corporation
where the Debt Securities may be presented for payment and for registration of transfer and for
exchange as in this Indenture provided and where notices and demands to or upon the Corporation in
respect of the Debt Securities of any series or of this Indenture may be served.



Section 4.03 Provisions as to Paying Agent.




     (a) Whenever the Corporation shall appoint a paying agent other than the Trustee with respect
to the Debt Securities of any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:




	 	(1)	 	that it will hold sums held by it as such agent for the payment
of the principal of (and premium, if any), interest, if any, or Additional
Amounts, if any, on the Debt Securities of such series in trust for the benefit
of the Holders of the Debt Securities of such series, as the case may be,
entitled thereto and will notify the Trustee of the receipt of sums to be so
held;
	 
	 	(2)	 	that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on the Debt Securities of such series) to
make a payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on the Debt Securities of such series when the same
shall be due and payable; and
	 
	 	(3)	 	at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.





     (b) If the Corporation shall act as its own paying agent, it will, on or before each due date
of the principal of (and premium, if any), interest, if any, or Additional Amounts, if any, on the
Debt Securities of any series set aside, segregate and hold in trust for the benefit of the Holders
of the Debt Securities of such series entitled thereto a sum sufficient to pay such principal (and
premium if any), interest, if any, or Additional Amounts, if any, so becoming due. The Corporation
will promptly notify the Trustee in writing of any failure to take such action.



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









 



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     (d) Anything in this Section to the contrary notwithstanding, the agreement to hold sums in
trust as provided in this Section, is subject to the provisions of Sections 12.04 and 12.05.



Section 4.04 Statement by Officers as to Default.



     (a) The Corporation shall deliver to the Trustee, within 90 days after the end of each fiscal
year, commencing with the fiscal year ending December 31, 2009 an Officers’ Certificate stating
that a review of the activities of the Corporation and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to determining whether
the Corporation has kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that, in their capacities as
Officers, to the best of his or her knowledge the Corporation has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in Default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Corporation is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no event has occurred
and remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Debt Securities is prohibited or if such event has occurred, a description of the event
and what action the Corporation is taking or proposes to take with respect thereto.



     (b) The Corporation shall, so long as any of the Debt Securities are outstanding, deliver to
the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Corporation
is taking or proposes to take with respect thereto.



ARTICLE 5

SECURITYHOLDER LISTS AND REPORTS BY THE

CORPORATION AND THE TRUSTEE




Section 5.01 Securityholder Lists.




     The Corporation covenants and agrees that it will furnish or cause to be furnished to the
Trustee with respect to the Debt Securities of each series:



     (a) semiannually, not later than 7 business days prior to each Interest Payment Date (in the
case of any series having semiannual Interest Payment Dates) or not later than the dates determined
pursuant to Section 2.01 (in the case of any series not having semiannual Interest Payment Dates) 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 the Regular Record Date (or as of such other date as may be
determined pursuant to Section 2.01 for such series) therefor, and



     (b) at such other times as the Trustee may request in writing within 10 days after receipt by
the Corporation 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 a particular series specified by the
Trustee as of a date not more than 15 days prior to the time such information is furnished;









 



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provided, however, that if and so long as the Trustee shall be the Security Registrar, such list
shall not be required to be furnished.




Section 5.02 Preservation and Disclosure of Lists.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with
Section 312(a) of the Trust Indenture Act. If the Trustee is not the Registrar, the Corporation
shall furnish to the Trustee at least seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of Notes and the
Corporation shall otherwise comply with Section 312(a) of the Trust Indenture Act.




          Holders may communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to its rights under this Indenture or the Notes. The Corporation, the
Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust
Indenture Act.




          Each and every Holder of Debt Securities, by receiving and holding the same, agrees with the
Corporation and the Trustee that neither the Corporation nor the Trustee nor any agent of the
Corporation or of the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Debt Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).




Section 5.03 Reports by the Corporation.




     The Corporation covenants:



     (a) to file with the Trustee within 15 days after the Corporation is required to file the same
with the Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Corporation may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended; or, if the Corporation is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and regulations;



     (b) to file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information, documents, and reports
with respect to compliance by the Corporation with the conditions and









 



23



covenants provided for in
this Indenture as may be required from time to time by such rules and regulations; and



     (c) to transmit by mail to all the Holders of Debt Securities of each series, as the names and
addresses of such Holders appear on the Debt Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and reports required to be
filed by the Corporation with respect to each such series pursuant to subsections (a) and (b) of
this Section as may be required by rules and regulations prescribed from time to time by the
Commission.



Section 5.04 Reports by the Trustee.




     (a) Within 60 days after each January 31, beginning with the first January 31 following the
date of this Indenture, and in any event on or before April 1 in each year, so long as any Debt
Securities of any series are outstanding hereunder, the Trustee shall transmit by mail to the
Holders of Debt Securities of such series a brief report dated as of January 31 that complies with
Trust Indenture Act Section 313(a); provided however, that if no event described in Trust Indenture
Act Section 313(a) has occurred within the 12 months preceding the reporting date, no report need
be transmitted. The Trustee shall also comply with Trust Indenture Act Section 313(b).



     (b) A copy of each such report shall, at the time of such transmission to Holders of Debt
Securities of a particular series, be filed by the Trustee with each stock exchange upon which the
Debt Securities of such series are listed (if any) and also with the Commission. The Corporation
agrees to notify the Trustee in writing when and as the Debt Securities of any series become listed
on any stock exchange and any delisting thereof.



ARTICLE 6

REMEDIES ON DEFAULT




Section 6.01 Events of Default.




     In case one or more of the following shall have occurred and be continuing with respect to a
particular series of Debt Securities (each of the following, an “Event of Default”):



     (a) default in the payment of the principal of (or premium, if any, on) any of the Debt
Securities of such series as and when the same shall become due and payable either at maturity,
upon redemption, by declaration or otherwise whether or not such payment shall be prohibited by
Article Seventeen, if applicable;



     (b) default in the payment of any installment of interest, if any, or in the payment of any
Additional Amounts upon any of the Debt Securities of such series as and when the same shall become
due and payable, whether or not such payment shall be prohibited by Article Seventeen, if
applicable, and continuance of such default for a period of 30 days after written notice from the
Trustee;



     (c) failure on the part of the Corporation duly to observe or perform any other of the
covenants or agreements on the part of the Corporation applicable to such series of the Debt









 



24



Securities or contained in this Indenture for a period of 90 days after the date on which written
notice of such failure, requiring the Corporation to remedy the same, shall have been given to the
Corporation by the Trustee, or to the Corporation and the Trustee by the Holders of at least
25% in aggregate principal amount of the Debt Securities of such series at the time outstanding;



     (d) default by the Corporation or any Significant Subsidiary in any payment of $10,000,000 or
more of principal of or interest on any notes, bonds, debentures and other similar evidences of
indebtedness for money borrowed, or in the payment of $10,000,000 or more on account of any
guarantee in respect of any notes, bonds, debentures and other similar evidences of indebtedness
for money borrowed, beyond any period of grace that may be provided in the instrument or agreement
under which such notes, bonds, debentures and other similar evidences of indebtedness for money
borrowed or guarantee was created;



     (e) a court of competent jurisdiction enters a decree or order for relief in respect of the
Corporation in an involuntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial part of its property,
or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain
unstayed, undismissed and unbonded and in effect for a period of 90 days; or



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


then if an Event of Default described in clause (a), (b) or (c) shall have occurred and be
continuing, and in each and every such case, unless the principal amount of all 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 Debt Securities of all series affected thereby
then outstanding hereunder, by notice in writing to the Corporation (and to the Trustee if given by
Holders of such Debt Securities) may declare the principal amount of all the Debt Securities not
already due and payable (or, with respect to Original Issue Discount Securities, such lesser amount
as may be specified in the terms of such Debt Securities) of the series affected thereby to be due
and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, any provision of this Indenture or the Debt Securities of such series
to the contrary notwithstanding, or, if an Event of Default described in clause (d), (e) or (f)
shall have occurred and be continuing, and in each and every such case, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of all the Debt Securities then
outstanding hereunder (voting as one class), by notice in writing to the Corporation (and to the
Trustee if given by Holders of securities), may declare the principal of all the Debt Securities
not already due and payable (or, with respect to Original Issue Discount Securities, such lesser
amount as may be specified in the terms of such Debt Securities) to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due and payable, any
provision in this Indenture or in the Debt Securities to the contrary notwithstanding. The
foregoing provisions, however, are subject to the conditions that if, at any time after the
principal of the Debt Securities of any one or more or all series, as the








 



25


case may be, shall have
been so declared due and payable, and before any judgment or decree for the payment of the monies
due shall have been obtained or entered as hereinafter provided, the
Corporation shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, and all Additional Amounts, if any, due upon all the Debt
Securities of such series or of all the Debt Securities, as the case may be, and the principal of
(and premium, if any, on) all Debt Securities of such series or of all the Debt Securities, as the
case may be (or, with respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Debt Securities), which shall have become due otherwise than by
acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent
that payment of such interest is enforceable under applicable law, on overdue installments of
interest and Additional Amounts, if any, at the same rate as the rate of interest specified in the
Debt Securities of such series, as the case may be (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Debt Securities for interest on overdue
principal thereof upon maturity, redemption or acceleration of such series, as the case may be), to
the date of such payment or deposit), and such amount as shall be payable to the Trustee pursuant
to Section 7.06, and any and all defaults under the Indenture shall have been remedied, then and in
every such case the Holders of a majority in aggregate principal amount of the Debt Securities of
such series (or of all the Debt Securities, as the case may be) then outstanding, by written notice
to the Corporation
 and to the Trustee, may waive all defaults with respect to that series or with
respect to all Debt Securities, as the case may be, and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon. If the principal of all Debt
Securities shall have been declared to be payable pursuant to this Section 6.01, in determining
whether the Holders of a majority in aggregate principal amount thereof have waived all defaults
and rescinded and annulled such declaration, all series of Debt Securities shall be treated as a
single class and the principal amount of Original Issue Discount Securities shall be deemed to be
the amount declared payable under the terms applicable to such Original Issue Discount Securities.




     In case the Trustee 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 Corporation, Trustee and the Holders of Debt Securities, as the case may be, shall be
restored respectively to their former positions and rights hereunder, and all rights, remedies and
powers of the Corporation, the Trustee and the Holders of Debt Securities, as the case may be,
shall continue as though no such proceedings had been taken.



Section 6.02 Payment of Debt Securities on Default; Suit Therefor.




     The Corporation covenants that: (i) in case default shall be made in the payment of any
installment of interest, if any, on any of the Debt Securities of any series or any Additional
Amounts payable in respect of any of the Debt Securities 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 (ii) in
case default shall be made in the payment of the principal of (or premium, if any, on) any of the
Debt Securities of any series, as and when the same shall have become due









 



26



and payable, whether upon
maturity of such series or upon redemption or upon declaration or otherwise, then upon demand of
the Trustee, the Corporation shall pay to the Trustee, for the benefit of the Holders of the Debt
Securities of such series, the whole amount that then shall have become due and payable on all such
Debt Securities of such series for principal (and premium, if any) or interest, if any, or
Additional Amounts, if any 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 overdue installments of interest, if any, and Additional
Amounts, if any, at the same rate as the rate of interest specified in the Debt Securities of such
series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms
of such Debt Securities for interest on overdue principal thereof upon maturity, redemption or
acceleration); and, in addition thereto, such further amounts as shall be payable pursuant to
Section 7.06.



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



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Corporation or any other obligor upon Debt Securities of any series under Title 11 of the United
States Code or any other applicable law, or in case a receiver or trustee shall have been appointed
for the property of the Corporation or such other obligor, or in case of any other judicial
proceedings relative to the Corporation or such other obligor, or to the creditors or property of
the Corporation 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, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal (or, with respect
to Original Issue Discount Securities, such portion of the principal amount as may be specified in
the terms of that series), and premium, if any, interest, if any, and Additional Amounts, if any,
owing and unpaid in respect of the Debt Securities of such series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee under Section
7.06 and of the Holders of the Debt Securities of such series allowed in any such judicial
proceedings relative to the Corporation or other obligor upon the Debt Securities of such series,
or to the creditors or property of the Corporation or such other obligor, and to collect and
receive any monies or other property payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the Securityholders of such series and of the
Trustee on their behalf; 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 payments to
the Trustee and, in the event that the Trustee shall consent to the making of payments directly to
the Securityholders of such series, 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 reasonable
expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.



     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 of reorganization, arrangement,









 



27



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 in any such proceeding.



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



     In case of a default hereunder the Trustee may in its discretion proceed to protect and
enforce the rights 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 at law or in
equity or 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 6.03 Application of Monies and Property Collected by Trustee.




     Any monies and property collected by the Trustee pursuant to Section 6.02 with respect to Debt
Securities of any series shall be applied, after giving effect to the provisions of Article
Seventeen, if applicable, in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such monies or property on account of principal (or premium, if any) or
interest, if any, upon presentation of the several Debt Securities in respect of which monies and
property have been collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:



     FIRST: To the payment of the amounts payable to the Trustee pursuant to Section 7.06;



     SECOND: In case the principal of the Debt Securities in respect of which monies have been
collected shall not have become due, to the payment of interest, if any, and Additional Amounts, if
any, on the Debt Securities of such series 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 and Additional Amounts, if any, at the same rate as the rate
of interest, if any, specified in the Debt Securities of such series (or, with respect to Original
Issue Discount Securities, at the rate specified in the terms of such Debt Securities for interest
on overdue principal thereof upon maturity, redemption or acceleration), such payments to be made
ratably to the persons entitled thereto, without discrimination or preference;



     THIRD: In case the principal of the Debt Securities in respect of which monies have been
collected shall have become due, by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon the Debt Securities of such series for principal (and premium, if any),
interest, if any, and Additional Amounts, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if any, and Additional Amounts, if
any, at the same rate as the rate of interest specified in the Debt Securities of such series (or,
with respect to Original Issue Discount Securities, at the rate









 



28



 specified in the terms of such Debt
Securities for interest on overdue principal thereof upon maturity, redemption or acceleration);
and in case such monies shall be insufficient to pay in full the whole amount so due and unpaid
upon the Debt Securities of such series, then to the payment
of such principal (and premium, if any), interest, if any, and Additional Amounts, if any, without
preference or priority of principal (and premium, if any), over interest, if any, and Additional
Amounts, if any, or of interest, if any, and Additional Amounts, if any, over principal (and
premium, if any), or of any installment of interest, if any, or Additional Amounts, if any, over
any other installment of interest, if any, or Additional Amounts, if any, or of any Debt Security
of such series over any other Debt Security of such series, ratably to the aggregate of such
principal (and premium, if any), and accrued and unpaid interest, if any, and Additional Amounts,
if any; and



     FOURTH: To the Corporation in the event any amounts remain after the foregoing payments are
made.



Section 6.04 Proceedings by Securityholders.




     No Holder of any Debt Security of any series shall have any right by virtue or by availing of
any provision of this Indenture to institute any action or proceedings at law or in equity 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 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 or, in the case of any Event of Default described
in clause (d) or (e) of Section 6.01, 25% in aggregate principal amount of all the Debt Securities
at the time outstanding (voting as one class) shall have made written request upon the Trustee to
institute such action or proceedings 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 failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 6.06; it being understood and intended and being expressly covenanted by the taker and
Holder of every Debt Security 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 himself, herself or itself of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of 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, except in
the manner herein provided and for the equal, ratable and common benefit of all Holders of Debt
Securities. For the protection and enforcement of the revisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.



     Notwithstanding any other provisions in this Indenture, however, the right of any Holder of
any Debt Security to receive payment of the principal of (and premium, if any) and interest, if
any, and Additional Amounts, if any, on such Debt Security, on or after the respective due dates
expressed in such Debt Security, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the consent of such









 



29



Holder.
With respect to original Issue Discount Debt Securities, principal shall mean such amount as shall
be due and payable as may be specified in the terms of such Debt Securities.



Section 6.05 Remedies Cumulative and Continuing.




     All powers and remedies given by this Article Six to the Trustee or to the Holders of Debt
Securities 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 of Debt
Securities, 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 of any of the Debt Securities 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 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the
Holders of Debt Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Debt Securities.



Section 6.06 Direction of Proceedings.




     The Holders of a majority in aggregate principal amount of the Debt Securities of any or all
series affected (voting as one class) at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however, that: (i) such direction
shall not be in conflict with any rule of law or with this Indenture; (ii) the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such direction; and (iii)
the Trustee shall have the right to decline to follow any such direction if the Trustee, being
advised by counsel, determines that the action or proceedings so directed would be prejudicial to
the Holders not joining in such direction or may not lawfully be taken or if the Trustee in good
faith by a trust committee of responsible officers shall determine that the action or proceedings
so directed would involve the Trustee in personal liability.



     Prior to any declaration accelerating the maturity of the Debt Securities of any series, the
holders of a majority in aggregate principal amount of the Debt Securities of such series at the
time outstanding may on behalf of the Holders of all of 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 (premium, if any) or interest, if any, or Additional Amounts, if any, on
any Debt Securities of such series or in respect of a covenant or provision hereof that may not be
modified or amended without the consent of the Holders of each outstanding Debt Security of such
series affected. Upon any such waiver the Corporation, the Trustee and the Holders of the Debt
Securities of such series 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 hereunder
shall have been waived as permitted by this Section 6.06, said default or Event of Default shall
for all purposes of the Debt Securities of such series and this Indenture be deemed to have been
cured and to be not continuing.









 



30


Section 6.07 Notice of Defaults.




     The Trustee shall, within 90 days after the occurrence of a default with respect to the Debt
Securities of any series (of which it has actual knowledge per Section 7.02(h)), give notice of all
defaults with respect to that series known to the Trustee to all Holders of then outstanding
Debt Securities of that series, by sending such notice to such Holders at their addresses as
they shall appear on the Debt Security Register, unless in each case such defaults shall have been
cured before the sending or publication of such notice (the term “defaults” for the purpose of this
Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d) and (e)
and any additional events specified in the terms of any series of Debt Securities pursuant to
Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the
giving of written notice specified in Section 6.01 (c) or in the terms of any Debt Securities
established pursuant to Section 2.01); and provided that, except in the case of default in the
payment of the principal of (premium, if any), interest, if any, or Additional Amounts, if any, on
any of the Debt Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of responsible officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders of the Debt
Securities of such series.



Section 6.08 Undertaking to Pay Costs.




     All parties to this Indenture agree, and each Holder of any Debt Security by his, her or its
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that, the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholders of any series, or
group of such Securityholders, holding in the aggregate more than ten percent in aggregate
principal amount of all Debt Securities (voting as one class) or to any suit instituted by any
Securityholders for the enforcement of the payment of the principal of (or premium, if any),
interest, if any, or Additional Amounts, if any, on any Debt Security on or after the due date
expressed in such Debt Security.



ARTICLE 7

CONCERNING THE TRUSTEE




Section 7.01 Duties and Responsibilities of Trustee.




     The Trustee, prior to the occurrence of an Event of Default of a particular series and after
the curing of all Events of Default of such series that may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Indenture. In case an Event
of Default with respect to a particular series has occurred (which has not been cured) 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 its exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
















 





31




     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:



     (a) prior to the occurrence of an Event of Default with respect to a particular series and
after the curing of all Events of Default with respect to such series that may have occurred:




	 	(1)	 	the duties and obligations of the Trustee with respect to such
series shall be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
	 
	 	(2)	 	in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;





     (b) the Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer or officers, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and



     (c) 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 Debt Securities pursuant to
Section 6.06 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.



     No provision of this Indenture shall be construed as requiring the Trustee to expend or risk
its own funds or otherwise to incur any personal financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.



Section 7.02 Reliance on Documents, Opinions, etc.




     Subject to the provisions of Section 7.01:



     (a) the Trustee may conclusively rely, and shall, be fully 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 or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;









 



32


     (b) any request, direction, order or demand of the Corporation mentioned herein shall be
sufficiently evidenced by an instrument signed in the name of the Corporation by the President and
Chief Executive Officer or the Chief Financial Officer or any Vice President and by the Secretary
or any Assistant Secretary (unless other evidence in respect thereof be herein specifically
prescribed) and a Board Resolution may be evidenced to the Trustee by a copy thereof certified by
the Secretary or any Assistant Secretary of the Corporation;



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



     (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, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses, and liabilities which might be
incurred therein or thereby;



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



     (f) 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 shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed with due care;



     (g) the Trustee shall not be liable for any action 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;



     (h) the Trustee shall not be deemed to have notice or be charged with knowledge of any default
or Event of Default unless a Trust Officer of the Trustee shall have received from the Corporation
or any other obligor upon the Notes or from any Holder written notice thereof at its Corporate
Trust Office, and such notice references the Notes and this Indenture. In the absence of any such
notice, the Trustee may conclusively assume that no such default of Event of Default exists;



     (i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, including the Trustee’s officers,
directors, agents and employees and each agent, custodian and other Person employed to act
hereunder. Such rights, privileges, protections, immunities and benefits, including, without
limitation, the right to indemnification, together with the Trustee’s right to compensation and









 



33



reimbursement expenses, shall survive the Trustee’s resignation or removal and final payment
of the Debt Securities; and



     (j) the Trustee may request that the Corporation deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of Officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.



Notwithstanding anything in this Indenture, in no event shall the Trustee, any paying agent, any
conversion agent or any registrar for a series of Debt Securities be liable under or in connection
with this Indenture for indirect, special, incidental, punitive or consequential losses or damages
of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even
if the Trustee, the paying agent, the conversion agent or the registrar of the applicable series of
debt securities has been advised of the possibility thereof and regardless of the form of action in
which such damages are sought; provided that the paying agent, the conversion agent or the
registrar of the applicable series of Debt Securities is not the Corporation or any of its
Subsidiaries.



Section 7.03 No Responsibility for Recitals, etc.




     The recitals contained herein and in the Debt Securities, other than the Trustee’s certificate
of authentication, shall be taken as the statements of the Corporation, 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, provided that the Trustee
shall not be relieved of its duty to authenticate Debt Securities only as authorized by this
Indenture. The Trustee shall not be accountable for the use or application by the Corporation of
Debt Securities or the proceeds thereof.



Section 7.04 Ownership of Debt Securities.




     The Trustee or any agent of the Corporation or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities with the same rights it would have if
it were not Trustee, or an agent of the Corporation or of the Trustee.



Section 7.05 Monies to be Held in Trust.




     Subject to the provisions of Sections 12.04 and 12.05 hereof, all monies received by the
Trustee or any paying agent 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 any monies received by it hereunder except such as it may agree with the Corporation to
pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest
allowed on any such monies shall be paid from time to time upon the written order of the
Corporation, signed by its President and Chief Executive Officer or its Chief Financial Officer or
any Vice President.









 



34


Section 7.06 Compensation and Expenses of Trustee.




     The Corporation covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation, and, except as otherwise expressly provided, the
Corporation 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 reasonable compensation, expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. If any property other than cash shall at any time be subject to
the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such
property to such lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances hereon. The Corporation
also covenants to indemnify the Trustee and its officers, directors, employees and agents for, and
to hold it harmless against, any loss, liability or reasonable expense incurred without negligence
or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Corporation under this Section to
compensate the Trustee and to pay or reimburse the Trustee for reasonable 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.



Section 7.07 Officers’ Certificate as Evidence.




     Subject to the provisions of Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee, and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.



Section 7.08 Conflicting Interest of Trustee.




     The Trustee shall comply with Section 310(b) of the Trust Indenture Act of 1939.



Section 7.09 Eligibility of Trustee.




     There shall at all times be a trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States, which: (a) is authorized under such laws to
exercise corporate trust powers; (b) is subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority; and (c) shall have at all times a combined capital
and surplus of not less than U.S. $50 million. If such corporation 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, the combined capital and surplus of









 



35



such corporation at any time 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 shall
cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.



Section 7.10 Resignation or Removal of Trustee.




     (a) The Trustee, or any trustee or trustees hereafter appointed, may, upon 30 days written
notice to the Corporation, at any time resign with respect to one or more or all series by giving
written notice of resignation to the Corporation. Upon receiving such notice of resignation the
Corporation shall promptly appoint a successor trustee with respect to the applicable series by
written instrument, in duplicate, executed by order of the Board of Directors of the Corporation,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the sending of such notice of resignation to the Securityholders,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a Debt Security or Debt
Securities of the applicable series for at least six months may, subject to the provisions of
Section 6.08, on behalf of himself, herself or itself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor trustee.



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




	 	(i)	 	the Trustee shall fail to comply with Section 7.08 with respect
to any series of Debt Securities after written request therefor by the
Corporation or by any Securityholder who has been a bona fide Holder of a Debt
Security or Debt Securities of such series for at least six months;
	 
	 	(ii)	 	the Trustee shall cease to be eligible in accordance with the
provision of Section 7.09 with respect to any series of Debt Securities and
shall fail to resign after written request therefor by the Corporation or by
any such Securityholder; or
	 
	 	(iii)	 	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 Corporation may remove the Trustee with respect to the
applicable series of Debt Securities and appoint a successor trustee with
respect to such series by written instrument, in duplicate, executed by order
of the Board of Directors of the Corporation, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 6.08, any Securityholder of
such series who has been a bona fide Holder of a Debt Security or Debt
Securities of the applicable series for at least six months










 



36


	 	 	 	may, on behalf of himself, herself or itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.





     (c) The Holders of a majority in aggregate principal amount of the Debt Securities of all
series (voting as one class) at the time outstanding may at any time remove the Trustee with
respect to Debt Securities of all series and appoint a successor trustee with respect to the Debt
Securities of all series.



     (d) Any resignation or removal of the Trustee and any appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.



Section 7.11 Acceptance by Successor Trustee.




     Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and
deliver to the Corporation and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal the predecessor trustee with respect to all or
any applicable series shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and obligations with
respect to such series of its predecessor hereunder, with like effect as if originally named as
trustee herein; but, on the written request of the Corporation 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 7.06, execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee,
the Corporation shall execute any and all instruments in writing in order more fully and certainly
to vest in and confirm 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 to secure any amounts then due it pursuant to the provisions of Section 7.06.



     In case of 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 one or more series shall execute and
deliver an indenture supplemental hereto, pursuant to Article Ten hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of
that or those series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) 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









 



37



trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates.



     No successor trustee shall accept appointment as provided in this Section unless at the time
of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09.



     Upon acceptance of appointment by a successor trustee as provided in this Section, the
Corporation shall give notice of the succession of such trustee hereunder to the Holders of Debt
Securities of each series affected, by mailing such notice to such Holders at their addresses as
they shall appear on the Debt Security Register. If the Corporation fails to mail such notice in
the prescribed manner within 10 days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be so given at the expense of the Corporation.



Section 7.12 Successor by Merger, etc.




     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.



Section 7.13 Limitations on Rights of Trustee as Creditor.




     The Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939.



ARTICLE 8

CONCERNING THE SECURITYHOLDERS




Section 8.01 Action by Securityholders.




     Whenever in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Debt Securities of any or all 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 have joined therein may be evidenced by: (i) by any instrument or any
number of instruments of similar tenor executed by Securityholders in person or by agent or









 



38

proxy appointed in writing; (ii) by the record of the Holders of Debt Securities voting in
favor thereof at any meeting of Securityholders duly called and held in accordance with the
provisions of Article Nine; or (iii) by a combination of such instrument or instruments and any
such record of such a meeting of Securityholders.




     In determining whether the Holders of a specified percentage in aggregate principal amount of
the Debt Securities have taken any action (including the making of any demand or request, the
waiving of any notice, consent or waiver or the taking of any other action), the principal amount
of any Original Issue Discount Security that may be counted in making such determination and that
shall be deemed to be outstanding for such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms
of such Original Issue Discount Security at the time the taking of such action is evidence to the
Trustee.



Section 8.02 Proof of Execution by Securityholders.




     Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be proved by the Debt Security Register
or by a certificate of the Security Registrar.



Section 8.03 Who Are Deemed Absolute Owners.




     The Corporation, the Trustee, any paying agent, any transfer agent and any Security Registrar
may, subject to Section 2.04 hereof, treat the person in whose name a Debt Security shall be
registered upon the Debt Security Register as the absolute owner of such Debt Security (whether or
not such Debt Security shall be overdue) for the purpose of receiving payment thereof or on account
thereof and for all other purposes and neither the Corporation, the Trustee, any paying agent, any
transfer agent nor any Security Registrar shall be affected by any notice to the contrary.



Section 8.04 Corporation-Owned Debt Securities Disregarded.




     In determining whether the Holders of the required aggregate principal amount of Debt
Securities have concurred in any direction, consent or waiver under this Indenture, Debt Securities
that are owned by the Corporation or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Corporation, shall be disregarded and deemed
not to be outstanding for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver only Debt Securities that the Trustee has actual knowledge are so owned shall be
disregarded. Debt Securities so owned that have been pledged in good faith may be regarded as
outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of
the Trustee the pledgee’s right 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 Corporation. In the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.









 



39


Section 8.05 Revocation of Consents; Future Securityholders Bound.




     At any time prior to the taking of any action by the Holders of the percentage in aggregate
principal amount of the Debt Securities specified in this Indenture in connection with such action,
any Holder of a Debt Security the identifying number of which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such action may, by filing
written notice with the Trustee at its office and upon proof of holding as provided in Section
8.02, 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 in
exchange or substitution therefor irrespective of whether or not any notation in regard thereto is
made upon 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 Corporation, the Trustee and the Holders of all the Debt
Securities of each series intended to be affected thereby.



ARTICLE 9

SECURITYHOLDERS’ MEETINGS




Section 9.01 Purposes of Meetings.




     A meeting of Securityholders of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article for any of the following purposes:




	 	(1)	 	to give any notice to the Corporation or to the Trustee, or to give any
directions to the Trustee, or to waive any default hereunder and its consequences, or
to take any other action authorized to be taken by Securityholders pursuant to any of
the provisions of Article Six;
	 
	 	(2)	 	to remove the Trustee and appoint a successor trustee pursuant to the
provisions of Article Seven;
	 
	 	(3)	 	to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 10.02; or
	 
	 	(4)	 	to take any other action authorized to be taken by or on behalf of the Holders
of any specified aggregate principal amount of the Debt Securities of any or all
series, as the case may be, under any other provision of this Indenture or under
applicable law.





Section 9.02 Call of Meetings by Trustee.




     The Trustee may at any time call a meeting of Holders of Debt Securities of any or all series
to take any action specified in Section 9.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of the Holders of Debt Securities of any or all
series, setting forth the time and place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to all Holders of then outstanding Debt Securities of
each series that may be affected by the action proposed to be taken at such meeting, by sending









 



40

such notice to such Holders at their addresses as they shall appear on the Debt Security
Register, not less than twenty nor more than 180 days prior to the date fixed for the meeting.
Failure of any Holder or Holders to receive such notice, or any defect therein, shall in no case
affect the validity of any action taken at such meeting. Any meeting of Holders of Debt Securities
of all or any series shall be valid without notice if the Holders of all such Debt Securities
outstanding, the Corporation and the Trustee are present in person or by proxy or shall have waived
notice thereof before or after the meeting. The Trustee may fix, in advance, a date as the record
date for determining the Holders entitled to notice of or to vote at any such meeting at not less
than twenty or more than 180 days prior to the date fixed for such meeting.




Section 9.03 Call of Meetings by Corporation or Securityholders.




     In case at any time the Corporation, pursuant to a Board Resolution, or the Holders of at
least ten percent in aggregate principal amount of the Debt Securities of any or all series, as the
case may be, then outstanding, shall have requested the Trustee to call a meeting of
Securityholders of any or all series to take any action authorized in Section 9.01, by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have sent, as provided in Section 9.02, the notice of such meeting within 30 days
after receipt of such request, then the Corporation or the Holders of such Debt Securities in the
amount above specified may determine the time and the place by sending notice thereof as provided
in Section 9.02.



Section 9.04 Qualification for Voting.




     To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or
more Debt Securities of a series with respect to which a meeting is being held or a person
appointed by instrument in writing as proxy by such a Holder. The only persons who shall be
entitled to be present or to speak at any meeting of the Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Corporation and its counsel.



Section 9.05 Regulations.




     Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Debt Securities and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it
shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Corporation or by Securityholders as provided in
Section 9.03, in which case the Corporation or the Securityholder calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount
of the Debt Securities represented at the meeting and entitled to vote.









 



41


     Subject to the provisions of Sections 8.01 and 8.04, at any meeting each Securityholder or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount of Debt Securities held
or represented by him, her or it; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Debt Security challenged as not outstanding and ruled by the chairman of
the meeting not to be outstanding. The chairman of the meeting shall have no right to vote except
as a Securityholder or proxy. Any meeting of Securityholders duly called pursuant to the
provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held
as so adjourned without further notice.



Section 9.06 Voting.




     The vote upon any resolution submitted to any meeting of Securityholders shall be by written
ballot on which shall be subscribed the signatures of the Securityholders or proxies and on which
shall be inscribed the identifying number or numbers or to which shall be attached a list of
identifying numbers of the Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of the meeting their
verified reports in duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavit by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 9.02 or Section 9.03. The record shall be signed and verified by the permanent
chairman and secretary of the meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



ARTICLE 10

SUPPLEMENTAL INDENTURES




Section 10.01 Supplemental Indentures Without Consent of Securityholders.




     The Corporation, when authorized by 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) for one or more of the following purposes:



     (a) to evidence the succession of another entity to the Corporation, or successive
successions, and the assumption by any successor entity of the covenants, agreements and
obligations of the Corporation pursuant to Article Eleven hereof;



     (b) to add to the covenants of the Corporation such further covenants, restrictions,
conditions or provisions as its 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 any or all series permitting the









 



42



enforcement of all or any of the several remedies provided in this Indenture as herein set
forth, with such period of grace, if any, and subject to such conditions as such supplemental
indenture may provide;



     (c) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture that may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture; or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect the interests of the Holders
of any series of Debt Securities;



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



     (e) to evidence and provide for the acceptance and appointment hereunder by a successor
trustee with respect to the Debt Securities of one or more series and to add or change 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 7.11;



     (f) to establish the form or terms of Debt Securities of any series as permitted by Sections
2.01 and 2.03; and



     (g) to change or eliminate any provision of this Indenture, provided that any such change or
elimination: (i) shall become effective only when there is no Debt Security outstanding of any
series created prior to the execution of such supplemental indenture that is entitled to the
benefit of such provision; or (ii) shall not apply to any Debt Security outstanding.



     The Trustee is hereby authorized to join with the Corporation in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations that 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 that adversely affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section 10.1 may be executed
by the Corporation 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 Securityholders.




     With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a
majority in the aggregate principal amount of the Debt Securities of all series at the time
outstanding affected by such supplemental indenture (voting as one class), the Corporation, 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 indentures or modifying in any manner the rights of the Holders of the Debt Securities
of each such series; provided, however, that no such supplemental indenture shall: (i)









 



43



change the fixed maturity of any Debt Securities, or reduce the principal amount thereof (or
premium, if any), or reduce the rate or extend the time of payment of any interest or Additional
Amounts thereon or reduce the amount due and payable upon acceleration of the maturity thereof or
the amount provable in bankruptcy, or make the principal of (premium, if any) or interest, if any,
or Additional Amounts, if any, on any Debt Security payable in any coin or currency other than that
provided in such Debt Security; (ii) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity (or, in the case of redemption, on or after the
Redemption Date); (iii) in the case of any Debt Security subordinated pursuant to Article
Seventeen, make any change in Article Seventeen that adversely affects the rights of any Holder
under Article Seventeen; or (iv) reduce the aforesaid percentage of Debt Securities, the consent of
the Holders of which is required for any such supplemental indenture, or the percentage required
for the consent of the Holders pursuant to Section 6.01 to waive defaults, without the consent of
the Holder of each Debt Security so affected.



     Upon the request of the Corporation, accompanied by a copy of a Board Resolution certified by
the Secretary or an Assistant Secretary of the Corporation authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Corporation 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.



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



     Promptly after the execution and delivery by the Corporation and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Corporation shall give
notice of such supplemental indenture to the Holders of then outstanding Debt Securities of each
series affected thereby, by sending a notice thereof by first class mail or electronically to such
Holders at their addresses as they shall appear on the Debt Security Register, and such notice
shall set forth in general terms the substance of such supplemental indenture. Any failure of the
Corporation to send or publish such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.



Section 10.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures.




     Any supplemental indenture executed pursuant to the provisions of this Article Ten shall
comply with the Trust Indenture Act. 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, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Corporation 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.









 



44


     The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be provided an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Ten.



Section 10.04 Notation on Debt Securities.




     Debt Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. New Debt
Securities of any series so modified as to conform, in the opinion of the Board of Directors of the
Corporation, to any modification of this Indenture contained in any such supplemental indenture may
be prepared by the Corporation, authenticated by the Trustee and delivered, without charge to the
Securityholders, in exchange for the Debt Securities of such series then outstanding.



ARTICLE 11

CONSOLIDATION, MERGER, SALE OR CONVEYANCE




Section 11.01 Corporation May Consolidate, etc., on Certain Terms.




     The Corporation covenants that it will not merge or consolidate with any other entity or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets to
any person or entity, unless: (i) either the Corporation shall be the continuing corporation, or
the successor entity (if other than the Corporation) shall be an entity organized and existing
under the laws of the United States of America or any state thereof, or the District of Columbia,
or under the laws of Canada or any province or territory thereof and such successor entity shall
expressly assume, by a supplemental indenture in form satisfactory to the Trustee and executed and
delivered to the Trustee by such successor entity, the due and punctual payment of the principal of
(and premium, if any), interest, if any, and Additional Amounts, if any, on all 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 satisfied by the Corporation;
(ii) immediately after giving effect to such merger or consolidation, or such sale or conveyance,
no Event of Default, and no event that, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing; and (iii) the Corporation shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating, that
such consolidation, merger, sale or conveyance and such supplemental indenture, and any such
assumption by the successor entity, complies with the provisions of this Article Eleven.



Section 11.02 Successor Corporation Substituted.




     In case of any such consolidation, merger, sale or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted for the
Corporation, with the same effect as if it had been named herein as the party of the first part.
Such successor entity thereupon may cause to be signed, and may issue in its own name, any or all
of the Debt Securities, issuable hereunder which theretofore shall not have been signed by the
Corporation and delivered to the Trustee; and, upon the order of such successor entity, instead of
the Corporation, and subject to all the terms, conditions and limitations prescribed in this









 



45

Indenture, the Trustee shall authenticate and shall deliver any Debt Securities which
previously shall have been signed and delivered by the officers of the Corporation to the Trustee
for authentication, and any Debt Securities that such successor entity thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Debt Securities, so issued shall
in all respects have the same legal rank and benefit under this Indenture as the Debt Securities
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of
such Debt Securities, had been issued at the date of the execution hereof.




     In case of any such consolidation, merger, sale or conveyance, 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 Certificate to Trustee.




     Within 120 days after the end of each fiscal year of the Corporation, the Corporation will
deliver to the Trustee an Officers’ Certificate signed by any two of the Corporation’s principal
executive officer, principal financial officer or principal accounting officer, as to such
Officer’s knowledge of the Corporation’s compliance with all conditions and covenants under this
Indenture (such compliance to be determined without regard to any period of grace or requirement of
notice provided under this Indenture), as required by Section 314(a)(4) of the Trust Indenture Act.



ARTICLE 12

SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES




Section 12.01 Discharge of Indenture.




     If at any time: (i) the Corporation shall have delivered to the Trustee for cancellation all
Debt Securities of any series theretofore authenticated (other than any Debt Securities of such
series that shall have been destroyed, lost or stolen and that shall have been replaced or paid as
provided in Section 2.07); or (ii) all Debt Securities of any series not theretofore delivered to
the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the Corporation shall
deposit or cause to be deposited with the Trustee as trust funds the entire amount (other than
monies repaid by the Trustee or any paying agent to the Corporation in accordance with Sections
12.04 or 12.05) sufficient to pay at maturity or upon redemption or repayment all Debt Securities
of such series not theretofore delivered to the Trustee for cancellation (other than any Debt
Securities of such series that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07), including principal (and premium, if any), interest,
if any, and Additional Amounts, if any, due or to become due to such date of maturity, Redemption
Date or Repayment Date, as the case may be, and if in either case the Corporation shall also pay or
cause to be paid all other sums payable hereunder by the Corporation with respect to such series,
then this Indenture shall cease to be of further effect with respect to the Debt Securities of such
series, and the Trustee, on demand of and at the cost and expense of the Corporation and subject to
Section 14.04, shall execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to the Debt Securities of such series. The Corporation agrees to reimburse
the Trustee for any costs or expenses









 



46

thereafter reasonably incurred by the Trustee in connection with this Indenture or the Debt
Securities of such series.




Section 12.02 Satisfaction, Discharge and Defeasance of Debt Securities of Any Series.




     If pursuant to Section 2.01 provision is made for the defeasance of Debt Securities of a
series, then the provisions of this Section 12.02 shall be applicable except as otherwise specified
as contemplated by Section 2.01 for Debt Securities of such series. At the Corporation’s option,
either: (i) the Corporation shall be deemed to have paid and discharged the entire indebtedness on
all the outstanding Debt Securities of any such series and the Trustee, at the expense of the
Corporation, shall execute proper instruments acknowledging satisfaction and discharge of such
indebtedness; or (ii) the Corporation shall cease to be under any obligation to comply with any
term, provision, condition or covenant specified as contemplated by Section 2.01, when



     (a) either




	 	(1)	 	with respect to all outstanding Debt Securities of such series,






	 	(i)	 	the Corporation has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an
amount (in such currency in which such outstanding Debt Securities are
then specified as payable at Stated Maturity) sufficient to pay and
discharge the entire indebtedness of all outstanding Debt Securities of
such series for principal (and premium, if any), interest, if any, and
Additional Amounts, if any, to the Stated Maturity or any Redemption
Date as contemplated by the last paragraph of this Section 12.02, as
the case may be; or
	 
	 	(ii)	 	the Corporation has deposited or caused to be
deposited with the Trustee as obligations in trust for the purpose such
amount of direct noncallable obligations of, or noncallable obligations
the payment of principal of and interest on which is fully guaranteed
by, the United States of America, or to the payment of which
obligations or guarantees the full faith and credit of the United
States of America is pledged, maturing as to principal and interest in
such amounts and at such times as will, together with the income to
accrue thereon (but without reinvesting any proceeds thereof), be
sufficient to pay and discharge the entire indebtedness on all
outstanding Debt Securities of such series for principal (and premium,
if any), interest, if any, and Additional Amounts , if any, to the
Stated Maturity or any Redemption Date as contemplated by the last
paragraph of this Section 12.02, as the case may be; or






	 	(2)	 	the Corporation has properly fulfilled such other terms and
conditions of the satisfaction and discharge as is specified, as contemplated
by Section 2.01, as applicable to the Debt Securities of such series, and










 



47







     (b) the Corporation has paid or caused to be paid all other sums payable with respect to the
outstanding Debt Securities of such series, and



     (c) the Corporation has delivered to the Trustee an Opinion of Counsel stating that (i) the
Corporation has received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the outstanding Debt Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge 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, defeasance and discharge had not
occurred, and



     (d) the Corporation has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of the entire indebtedness on all outstanding Debt Securities of any
such series have been complied with.



     Any deposits with the Trustee referred to in Section 12.02(l)(A) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and substance satisfactory
to the Trustee. If any outstanding Debt Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to an optional redemption provision or in accordance with
any mandatory sinking fund requirement or otherwise, the applicable escrow trust agreement shall
provide therefor and the Corporation shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of
the Corporation.



Section 12.03 Deposited Monies to be Held in Trust by Trustee.




     All monies deposited with the Trustee pursuant to Section 12.01 or 12.02 shall be held in
trust and applied by it to the payment, either directly or through any paying agent, to the Holders
of the particular Debt Securities for the payment or redemption of which such monies have been
deposited with the Trustee, of all sums due and to become due thereon for principal (and premium,
if any), interest, if any, and Additional Amounts, if any.



Section 12.04 Paying Agent to Repay Monies Held.




     In connection with the satisfaction and discharge of this Indenture with respect to Debt
Securities of any series, all monies with respect to such Debt Securities then held by any paying
agent under the provisions of this Indenture shall, upon demand of the Corporation, be repaid to it
or paid to the Trustee and thereupon such paying agent shall be released from any further liability
with respect to such monies.



Section 12.05 Return of Unclaimed Monies.




     Any monies deposited with or paid to the Trustee or any paying agent for the payment of the
principal of (and premium, if any), interest, if any, and Additional Amounts, if any, on any Debt
Security and not applied but remaining unclaimed for two years after the date upon which









 



48



such principal (and premium, if any), interest, if any, and Additional Amounts, if any, shall
have become due and payable, shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Corporation by the Trustee or such
paying agent on demand, and the Holder of such Debt Security shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property law, thereafter look
only to the Corporation for any payment that such Holder may be entitled to collect and all
liability of the Trustee or any paying agent with respect to such monies shall thereupon cease.



ARTICLE 13

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, 

OFFICERS AND DIRECTORS




Section 13.01 Indenture and Debt Securities Solely Corporate Obligations.




     No recourse under or upon any obligation, covenant or agreement contained in this Indenture or
any indenture supplemental hereto, or in any Debt Security, or because or on account of any
indebtedness evidenced thereby, shall be had against any past, present or future incorporator,
stockholder, officer, director, or other applicable principal, as such, of the Corporation or of
any successor entity, either directly or through the Corporation or any successor entity, under any
rule of law, statute or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Debt Securities by the Holders thereof and as part of the consideration
for the issue of the Debt Securities.



ARTICLE 14

MISCELLANEOUS PROVISIONS




Section 14.01 Benefits of Indenture Restricted to Parties and Securityholders.




     Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto and their successors and the Holders
of the Debt Securities, any legal or equitable right, remedy or claim under this Indenture or under
any covenant or provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the Debt Securities.



Section 14.02 Provisions Binding on Corporation’s Successors.




     All the covenants, stipulations, promises and agreements contained in this Indenture by or on
behalf of the Corporation shall bind its successors and assigns, whether so expressed or not.



Section 14.03 Addresses for Notices, etc.




     Any notice or demand that 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 to or on the Corporation may be
given or served by being deposited postage prepaid first class mail or via overnight delivery as
follows: Mercer International Inc., Suite 2840, 650 West Georgia Street, Vancouver,









 



49



British Columbia, Canada, V6B 4N8 (Attention: Chief Financial Officer). Any notice,
direction, request or demand by any Securityholder 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 its Corporate
Trust Office, which is, at the date of this Indenture, Wells Fargo Bank, National Association, 707
Wilshire Blvd., 17th Floor, Los Angeles, CA 90017, Mailcode E2818-176, Attention:
Corporate Trust Services.



Section 14.04 Evidence of Compliance with Conditions Precedent.




     Upon any application or demand by the Corporation to the Trustee to take any action under any
of the provisions of this Indenture, the Corporation shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of 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:
(i) a statement that the person making such certificate or opinion has read such covenant or
condition; (ii) 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; (iii) a
statement that, in the opinion of such person, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with.



Section 14.05 Legal Holidays.




     In any case where the Interest Payment Date, Stated Maturity Date or the Redemption Date of
any Debt Securities or the last date on which a Holder has the right to convert or exchange a Debt
Security shall not be a Business Day in a city where payment thereof is to be made, then payment of
any interest, premium or Additional Amounts on, or principal of, such Debt Securities or exchange
of Debt Securities need not be made on such date in such city but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption, conversion or exchange, and no interest shall accrue for the period
after such date.



Section 14.06 Trust Indenture Act to Control.




     If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the
Trust Indenture Act (an “incorporated provision”), such incorporated provision shall control.









 



50


Section 14.07 Execution in Counterparts.




     This Indenture may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original; but such counterparts shall together constitute 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.



Section 14.08 Governing Law.




     THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE CORPORATION
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 14.09 Severability of Provisions.




     Any prohibition, invalidity or unenforceability of any provision of this Indenture in any
jurisdiction shall not invalidate or render unenforceable the remaining provisions hereto in such
jurisdiction and shall not invalidate or render unenforceable such provisions in any other
jurisdiction.



Section 14.10 Corporation Released from Indenture Requirements under Certain Circumstances.




     Whenever in this Indenture the Corporation shall be required to do or not to do anything so
long as any of the Debt Securities of any series shall be Outstanding, the Corporation shall,
notwithstanding any such provision, not be required to comply with such provisions if it shall be
entitled to have this Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the Holders of any of the Debt Securities of that series shall have failed to
present and surrender them for payment pursuant to the terms of this Indenture.



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
















 





51



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

SINKING FUNDS




Section 15.01 Applicability of Article.




     The provisions of this Article shall be applicable to any sinking fund for the retirement of
Debt Securities of a series except as otherwise specified as contemplated by Section 2.01 for Debt
Securities of such series.



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



Section 15.02 Satisfaction of Sinking Fund Payments with Debt Securities.




     The Corporation may: (i) deliver Outstanding Debt Securities of a series (other than any
previously called for redemption); and (ii) apply as a credit Debt Securities of a series which
have been redeemed either at the election of the Corporation pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Debt Securities of such series required to be made pursuant to the
terms of such Debt Securities as provided for by the terms of such series; provided that such Debt
Securities have not been previously so credited. Such Debt Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in such Debt Securities
for redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 15.02, the principal amount of Debt Securities to be
redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Debt Securities for redemption, except upon Corporation Order, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent









 



52



shall at the request of the Corporation from time to time pay over and deliver to the
Corporation any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Corporation to the Trustee of Debt Securities purchased by the Corporation having an unpaid
principal amount equal to the cash payment requested to be released to the Corporation.



Section 15.03 Redemption of Debt Securities for Sinking Fund.




     Not less than 60 days prior to each sinking fund payment date for any series of Debt
Securities (unless a shorter period shall be satisfactory to the Trustee), the Corporation will
deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash, the portion thereof, if any, which is to be satisfied
by crediting Debt Securities of that series pursuant to Section 15.02 and the basis for any such
credit and, prior to or concurrently with the delivery of such Officers’ Certificate, will also
deliver to the Trustee any Debt Securities to be so credited and not theretofore delivered to the
Trustee. Not less than 30 days (unless a shorter period shall be satisfactory to the Trustee)
before each such sinking fund payment date the Trustee shall select the Debt Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 15.03 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Corporation
in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such
Debt Securities shall be made upon the terms and in the manner stated in Sections 3.03 and 3.04.



ARTICLE 16

REPAYMENT AT THE OPTION OF HOLDERS




Section 16.01 Applicability of Article.




     Debt Securities of any series that are repayable at the option of the Holders thereof before
their Stated Maturity shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 2.01 for Debt Securities of such series) in accordance with this
Article.



Section 16.02 Repayment of Debt Securities.




     Each Debt Security that is subject to repayment in whole or in part at the option of the
Holder thereof on a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 2.01.



Section 16.03 Exercise of Option; Notice.




     Each Holder desiring to exercise such Holder’s option for repayment shall, as conditions to
such repayment, surrender the Debt Security to be repaid in whole or in part together with written
notice of the exercise of such option at any office or agency of the Corporation designated for
such purpose, not less than 30 nor more than 45 days prior to the Repayment Date. Such notice,
which shall be irrevocable, shall specify the principal amount of such Debt Security to be repaid,
which shall be equal to the minimum authorized denomination for such Debt Security or an integral
multiple thereof, and shall identify the Debt Security to be repaid and, in the case of a partial
repayment of the Debt Security, shall specify the denomination or









 



53

denominations of the Debt Security or Debt Securities of the same series to be issued to the
Holder for the portion of the principal of the Debt Security surrendered which is not to be repaid.




     The Corporation shall execute and the Trustee shall authenticate and deliver without service
charge to the Holder of any Debt Security so surrendered a new Debt Security of the same series, of
any authorized denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Debt Security so surrendered which is not to be
repaid.



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



Section 16.04 Debt Securities Payable on the Repayment Date.




     Notice of exercise of the option of repayment having been given and the Debt Securities so to
be repaid having been surrendered as aforesaid, such Debt Securities shall, unless purchased in
accordance with Section 16.04, on the Repayment Date become due and payable at the price therein
specified and from and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, unless the Corporation shall default in the payment of
such price, in which case the Corporation shall continue to be obligated for the principal amount
of such Debt Securities and shall be obligated to pay interest on such principal amount at the rate
borne by such Debt Securities from time to time until payment in full of such principal amount.
The Corporation shall irrevocably deposit with the Trustee before 11 am New York City time on the
Repayment Date, a sum sufficient to pay all amounts outstanding on such Debt Securities.



ARTICLE 17

SUBORDINATION OF DEBT SECURITIES




Section 17.01 Applicability of Article; Agreement To Subordinate.




     The provisions of this Article Seventeen shall only be applicable to the Debt Securities of
any series (Debt Securities of such series referred to in this Article Seventeen as
“Subordinated Debt Securities”) designated, pursuant to Section 2.01, as subordinated in
accordance with their terms and (except as otherwise specified in an Officers’ Certificate or
supplemental indenture) in accordance with this Article Seventeen. Each Holder by accepting a
Subordinated Debt Security agrees that the Debt evidenced by such Subordinated Debt Security is
subordinated in right of payment, to the extent and in the manner provided in this Article
Seventeen (except as otherwise specified in an Officers’ Certificate or supplemental indenture), to
the prior payment of all Senior Indebtedness and that the subordination is for the benefit of and
enforceable by the holders of Senior Indebtedness.









 



54


Section 17.02 Liquidation, Dissolution, Bankruptcy.




     Upon any payment or distribution of the assets of the Corporation to creditors upon a total or
partial liquidation or a total or partial dissolution of the Corporation or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the Corporation or its
respective property:



     (a) holders of Senior Indebtedness shall be entitled to receive payment in full in cash of
such Senior Indebtedness (including interest (if any), accruing on or after the commencement of a
proceeding in bankruptcy, whether or not allowed as a claim against the Corporation in such
bankruptcy proceeding) before Holders of Subordinated Debt Securities shall be entitled to receive
any payment of principal of, or premium, if any, or interest on, the Subordinated Debt Securities
from the Corporation; and



     (b) until the Senior Indebtedness of the Corporation is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but for this Article Seventeen
shall be made to holders of Senior Indebtedness as their interests may appear, except that such
Holders may receive Permitted Junior Securities.



Section 17.03 Default on Senior Indebtedness.




     The Corporation may not pay the principal of, or premium, if any, or interest on, the
Subordinated Debt Securities or make any deposit pursuant to Article 12 and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities that provide for a
mandatory sinking fund pursuant to Section 15.03) any Subordinated Debt Securities (collectively,
“pay the Subordinated Debt Securities”) if (i) any principal, premium or interest in
respect of any Designated Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Designated Senior Indebtedness occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance with its terms unless,
in either case, (x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Designated Senior Indebtedness has been paid in full in cash; provided,
however, that the Corporation may make payments on the Subordinated Debt Securities without regard
to the foregoing if the Corporation and the Trustee receive written notice approving such payment
from the Representative of each issue of Designated Senior Indebtedness. During the continuance of
any default with respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace periods, the
Corporation may not make payments on the Subordinated Debt Securities for a period (a “Payment
Blockage Period”) commencing upon the receipt by the Corporation and the Trustee of written
notice of such default from the Representative of any Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period (a “Blockage Notice”) and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated by (i) written notice to the
Trustee and the Corporation from the Representative who gave such Blockage Notice, (ii) by
repayment in full in cash of such Designated Senior Indebtedness or (iii) because the default
giving rise to such Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section 17.03), unless the holders of such Designated Senior Indebtedness or
the Representative









 



55

of such holders shall have accelerated the maturity of such Designated Senior Indebtedness, the
Corporation may resume payments on the Subordinated Debt Securities after such Payment Blockage
Period. Not more than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of Designated Senior
Indebtedness during such period, unless otherwise specified pursuant to Section 2.01 for the
Subordinated Debt Securities of a series; provided, however, that in no event may the total number
of days during which any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360 consecutive day period. For purposes of this Section 17.03, no default or
event of default which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating such Payment Blockage
Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period
by the Representative of such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.




Section 17.04 Acceleration of Payment of Debt Securities.




     If payment of the Subordinated Debt Securities is accelerated because of an Event of Default,
the Corporation shall promptly notify the holders of the Designated Senior Indebtedness or their
Representatives known to the Corporation of the acceleration.



Section 17.05 When Distribution Must Be Paid Over.




     If a distribution is made to Holders of Subordinated Debt Securities that because of this
Article Seventeen should not have been made to them, the Holders who receive such distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to them as their
interests may appear.



Section 17.06 Subrogation.




     After all Senior Indebtedness is paid in full and until the Subordinated Debt Securities are
paid in full, Holders thereof shall be subrogated to the rights of holders of Senior Indebtedness
to receive distributions applicable to Senior Indebtedness. A distribution made under this Article
Seventeen to holders of Senior Indebtedness which otherwise would have been made to Holders of
Subordinated Debt Securities is not, as between the Corporation and such Holders, a payment by the
Corporation on Senior Indebtedness.



Section 17.07 Relative Rights.




     This Article Seventeen defines the relative rights of Holders of Subordinated Debt Securities
and holders of Senior Indebtedness. Nothing in this Indenture shall:



     (a) impair, as between the Corporation and Holders of either Subordinated Debt Securities or
Debt Securities, the obligation of the Corporation which is absolute and unconditional, to pay
principal of, and premium, if any, and interest on, the Subordinated Debt Securities and the Debt
Securities in accordance with their terms; or









 



56


     (b) prevent the Trustee or any Holder of either Subordinated Debt Securities or Debt
Securities from exercising its respective available remedies upon a Default or Event of Default,
subject to the rights of holders of Senior Indebtedness to receive distributions otherwise payable
to Holders of Subordinated Debt Securities.



Section 17.08 Subordination May Not Be Impaired by Corporation.




     No right of any holder of Senior Indebtedness to enforce the subordination of the Debt
evidenced by the Subordinated Debt Securities shall be impaired by any act or failure to act by the
Corporation or by its failure to comply with this Indenture.



Section 17.09 Rights of Trustee and Paying Agent.




     Notwithstanding Section 17.03, the Trustee or any paying agent may continue to make payments
on Subordinated Debt Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two Business Days prior
to the date of such payment, a Trust Officer receives written notice satisfactory to it that
payments may not be made under this Article Seventeen. The Corporation, the Security Registrar, any
paying agent, a Representative of Designated Senior Indebtedness may give the notice; provided,
however, that, if an issue of Senior Indebtedness has a Representative, only the Representative may
give the notice on behalf of the Holders of the Senior Indebtedness of that issue.



     The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same
rights it would have if it were not Trustee. The Registrar and any paying agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in this Article
Seventeen with respect to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article Seventeen shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.06.



Section 17.10 Distribution or Notice to Representative.




     Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the
distribution may be made and the notice given to their Representative (if any).



Section 17.11 Article Seventeen Not to Prevent Defaults or Limit Right to Accelerate.




     The failure to make a payment pursuant to the Subordinated Debt Securities, by reason of any
provision in this Article Seventeen shall not be construed as preventing the occurrence of a
Default. Nothing in this Article Seventeen shall have any effect on the right of the Holders or the
Trustee to accelerate the maturity of either the Subordinated Debt Securities or the Debt
Securities, as the case may be.



Section 17.12 Trustee Entitled to Rely.




     Upon any payment or distribution pursuant to this Article Seventeen, the Trustee and the
Holders shall be entitled to rely upon any order or decree of a court of competent jurisdiction in









 



57



which any proceedings of the nature referred to in Section 17.02 are pending, upon a
certificate of the liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to such Holders or upon the Representatives for the holders of Senior
Indebtedness for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Debt of the Corporation, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Seventeen. In the event that the Trustee determines, in good
faith, that 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 Seventeen, 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 other facts pertinent to the rights of
such Person under this Article Seventeen, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article Seventeen.



Section 17.13 Trustee to Effectuate Subordination.




     Each Holder by accepting a Subordinated Debt Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders of Subordinated Debt Securities and the holders of Senior
Indebtedness as provided in this Article Seventeen and appoints the Trustee as attorney-in-fact for
any and all such purposes.



Section 17.14 Trustee Not Fiduciary for Holders of Senior Indebtedness.




     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 mistakenly pay over or
distribute to Holders of Subordinated Debt Securities or the Corporation or any other Person, money
or assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article
Seventeen or otherwise.



Section 17.15 Reliance by Holders of Senior Indebtedness on Subordination Provisions.




     Each Holder by accepting a Subordinated Debt Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement and a consideration
to each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Subordinated Debt Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.



ARTICLE 18

CONVERSION OF DEBT SECURITIES











 



58




Section 18.01 Applicability of Article.




     The provisions of this Article Eighteen shall only be applicable to the Debt Securities of any
series (Debt Securities of such series referred to in this Article Eighteen as “Convertible
Securities”) designated, pursuant to Section 2.01 as being convertible in accordance with their
terms and (except as otherwise specified in an Officers’ Certificate or supplemental indenture) in
accordance with this Article Eighteen. In case by reason of the operation of this Article Eighteen,
the Convertible Securities shall be convertible into any other shares or other securities or
property of the Corporation or any other corporation, any reference in this Indenture to the
conversion of Convertible Securities pursuant to this Article Eighteen shall be deemed to refer to
and include conversion of Convertible Securities into such other shares or other securities or
property.



Section 18.02 Right to Convert.




     Subject to and upon compliance with the provisions of this Article, the Holder of any
Convertible Security shall have the right, at such Holder’s option, at any time prior to the close
of business on the date set forth in the Officers’ Certificate delivered pursuant to Section 2.01
hereof (or if such Convertible Security is called for redemption or submitted for repayment, then
in respect of such Convertible Security to and including but not after the close of business on the
second Business Day prior to the Redemption or Repayment Date, as the case may be, unless the
Corporation shall default in the payment due) to convert the principal amount of any such
Convertible Security, or, in the case of any Convertible Security of a denomination greater than
$1,000, any portion of such principal which is $1,000 or an integral multiple thereof, into that
number of fully paid and nonassessable Shares of Common Stock (as such shares shall then be
constituted) obtained by dividing the principal amount of the Convertible Security or portion
thereof surrendered for conversion by the Conversion Price, by surrender of the Convertible
Security so to be converted in whole or in part in the manner provided in Section 18.03. Such
conversion shall be effected by the Corporation.



Section 18.03 Conversion Procedures; Conversion Settlement.




(1) To convert a Convertible Security (other than a Convertible Security that is a Global
Security) a Holder must (1) complete and manually sign a Conversion Notice, a form of which is on
the back of the applicable Convertible Security, and deliver such Conversion Notice to the
Conversion Agent, (2) surrender the Note to the Conversion Agent, (3) if required, furnish
appropriate endorsement and transfer documents, (4) if required, pay all transfer or similar taxes
and (5) if required, pay cash equal to amount of interest due on the next Interest Payment Date for
such Note. If a Holder holds a beneficial interest in a Global Security, to convert such
beneficial interest, such Holder must comply with the requirements (4) and (5) as set forth in the
immediately preceding sentence and comply with the applicable procedures of the Depositary for
converting a beneficial interest in a Global Note. The first date on which all of the requirements
set forth in the first sentence of this Section 18.03 (in the case of a Convertible Security that
is not a Global Security) or the second sentence of this Section 18.03 (in the case of a Global
Security or a beneficial interest therein) have been satisfied is referred to in this Indenture as
the “Conversion Date”. The Conversion Agent shall, within one (1) Business Day of any
Conversion Date, provide written notice to the Corporation of the occurrence of such Conversion
Date.




 











 





59



          Delivery of shares of Common Stock upon conversion of Convertible Securities shall occur as
soon as practicable after the Conversion Date, but in any event within five Business Days of the
relevant Conversion Date.



          A Holder receiving Common Stock upon conversion shall not be entitled to any rights as a
holder of Common Stock, including, among other things, the right to vote and receive dividends and
notices of stockholder meetings, until the Close of Business on the Conversion Date.



          No payment or adjustment will be made for dividends on, or other distributions with respect
to, any Common Stock except as provided in this Article Eighteen. Upon conversion of a Convertible
Security, a Holder will not receive, except as described below, any cash payment representing
accrued interest (including any additional interest, if applicable). Instead, accrued interest
(including any additional interest, if applicable) will be deemed paid by the shares of Common
Stock received by the Holder upon conversion. Delivery to the Holder of such shares of Common
Stock shall thus be deemed to satisfy (1) the Corporation’s obligation to pay the principal amount
of a Convertible Security, and (2) the Corporation’s obligation to pay any accrued and unpaid
interest (including any additional interest, if applicable) on the Convertible Security. As a
result, upon conversion of a Convertible Security, accrued and unpaid interest (including any
additional interest) on such Convertible Security is deemed paid in full rather than cancelled,
extinguished or forfeited.



          Notwithstanding Section 18.02, if Convertible Securities are converted after a Regular Record
Date but prior to the next succeeding Interest Payment Date, Holders of such Convertible Securities
at the close of business on such Regular Record Date will receive the interest (including any
additional interest, if applicable) payable on such Convertible Securities on the corresponding
Interest Payment Date notwithstanding the conversion. Such Convertible Securities, upon surrender
for conversion, must be accompanied by cash equal to the amount of interest (including any
additional interest, if applicable) payable on such Interest Payment Date on the Convertible
Securities so converted; provided that no such payment need be made (1) if the Corporation has
specified a Redemption Date that is after a Regular Record Date but on or prior to the next
succeeding Interest Payment Date, (2) if the Corporation has specified a repurchase date that is
after a Regular Record Date but on or prior to the next succeeding Interest Payment Date, (3) with
respect to any Convertible Securities converted after the Regular Record Date immediately preceding
the Maturity Date or (4) to the extent of any defaulted interest that exists at the time of
conversion with respect to such Convertible Security.



          If a Holder converts more than one Convertible Security at the same time, the number of shares
of Common Stock and the amount of cash delivered in lieu of fractional shares, if any, due upon
conversion shall be determined based on the total principal amount of the Convertible Securities
converted.



          Upon surrender of a Convertible Security (other than a Convertible Security that is a Global
Security) that is converted in part, the Corporation shall execute, and the Trustee shall
authenticate and deliver to the Holder, a new Convertible Security in an authorized denomination
equal in principal amount to the unconverted portion of the Convertible Security surrendered.









 



60


Section 18.04 Cash Payments in Lieu of Fractional Shares.




     No fractional Shares of Common Stock or scrip representing fractional shares shall be
delivered upon conversion of Convertible Securities. If more than one Convertible Security shall
be surrendered for conversion at one time by the same Holder, the number of full shares which shall
be deliverable upon conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional share of stock would be deliverable upon the conversion of any
Convertible Security or Convertible Securities, the Corporation shall make an adjustment therefor
in cash at the current market value of such fractional share of stock. The market value of a Share
of Common Stock shall be the Closing Price on the Business Day immediately preceding the day on
which the Convertible Securities (or specified portions thereof) are deemed to have been converted.



Section 18.05 Conversion Price.




     The Conversion Price shall be as specified in the form of Convertible Security hereinafter set
forth, subject to adjustment as provided in this Article.



Section 18.06 Adjustment to Conversion Price.




     The Conversion Price shall be adjusted from time to time as follows:



     (a) In case the Corporation shall: (i) pay a dividend or make a distribution on the Shares of
Common Stock in shares of its capital stock (whether Shares of Common Stock or of capital stock of
any other class); (ii) subdivide or reclassify its outstanding Shares of Common Stock into a
greater number of securities (including Shares of Common Stock); or (iii) combine or reclassify its
outstanding Shares of Common Stock into a smaller number of securities (including Shares of Common
Stock), the Conversion Price in effect immediately prior thereto shall be adjusted so that the
Holder of any Convertible Security thereafter surrendered for conversion shall be entitled to
receive the number of shares of capital stock of the Corporation which such Holder would have owned
or have been entitled to receive after the happening of any of the events described above had such
Convertible Security been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (a) shall become effective immediately after the record
date in the case of a dividend and shall become effective immediately after the effective date in
the case of a subdivision or combination. If, as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Convertible Security thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes of capital stock of the Corporation, the
Board of Directors of the Corporation (whose determination shall be conclusive and shall be
described in a written statement filed with the Trustee and any conversion agent) shall determine
the allocation of the adjusted Conversion Price between or among shares of such classes of capital
stock.


In the event that at any time, as a result of an adjustment made pursuant to this subsection (a) of
this Section 18.06, the Holder of any Convertible Security thereafter converted shall become
entitled to receive any shares or other securities of the Corporation other than Shares of Common
Stock, thereafter the number of such other shares so received upon conversion of any Convertible
Security shall be subject to adjustment from time to time in any manner and on








 



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terms as nearly equivalent as practicable to the provisions with respect to the Shares of Common
Stock contained in this Section 18.06, and other provisions of this Article Eighteen with respect
to the Shares of Common Stock shall apply on like terms to any such other shares or other
securities.




     (b) In case the Corporation shall fix a record date for the issuance of rights or warrants to
all holders of its Shares of Common Stock (or securities convertible into Shares of Common Stock)
entitling them (for a period expiring within 45 days after such record date) to subscribe for or
purchase Shares of Common Stock at a price per share (or a conversion price per share) less than
the current market price per Share of Beneficial Interest (as defined in subsection (d) below) at
such record date, the Conversion Price in effect immediately prior thereto shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction of which the numerator shall be the number of
Shares of Common Stock outstanding on such record date plus the number of shares which the
aggregate offering price of the total number of shares so offered (or the aggregate initial
conversion price of the convertible securities so offered) would purchase at such current market
price, and of which the denominator shall be the number of Shares of Common Stock outstanding on
such record date plus the number of additional Shares of Common Stock offered for subscription or
purchase (or into which the convertible securities so offered are initially convertible). Such
adjustment shall be made successively whenever such a record is fixed, and shall become effective
immediately after such record date. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase Shares of Common Stock at less than such current market price,
and in determining the aggregate offering price of such shares, there shall be taken into account
any consideration determined by the Board of Directors of the Corporation. Shares of Common Stock
owned by or held for the account of the Corporation or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required under this subsection (b).



     (c) In case the Corporation shall fix a record date for making a distribution to all holders
of its Shares of Common Stock evidences of its indebtedness or assets (excluding regular quarterly
or other periodic or recurrent cash dividends or distributions paid from retained earnings of the
Corporation or dividends or distributions referred to in subsection (a) above) or rights or
warrants to subscribe or purchase (excluding those referred to in subsection (b) above), then in
each case the Conversion Price shall be adjusted so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to such record date by a fraction
of which the numerator shall be the current market price per share (as defined in subsection (d)
below) of the Shares of Common Stock on such record date less the then fair market value (as
determined by the Board of Directors of the Corporation whose determination shall be conclusive,
and described in a certificate filed with the Trustee) of the portion of the assets or evidences of
indebtedness so distributed or of such rights or warrants applicable to one Share of Beneficial
Interest, and the denominator shall be the current market price per share (as defined in subsection
(d) below) of the Shares of Common Stock. Such adjustment shall be made successively whenever such
a record date is fixed and shall become effective immediately after such record date.
Notwithstanding the foregoing, in the event that the Corporation shall distribute any rights or
warrants to acquire capital stock (“Rights”) pursuant to this subsection (c), the distribution of
separate certificates representing such Rights subsequent to their initial distribution (whether or
not such distribution shall have occurred prior to the date of the issuance of such Convertible
Securities) shall be deemed to be the distribution of such Rights for purposes









 



62



of this subsection (c); provided that the Corporation may, in lieu of making any adjustment
pursuant to this subsection (c) upon a distribution of separate certificates representing such
Rights, make proper provision so that each Holder of such Convertible Security who converts such
Convertible Security (or any portion thereof): (i) before the record date for such distribution of
separate certificates shall be entitled to receive upon such conversion Shares of Common Stock
issued with Rights; and (ii) after such record date and prior to the expiration, redemption or
termination of such Rights shall be entitled to receive upon such conversion, in addition to the
Shares of Common Stock issuable upon such conversion, the same number of such Rights as would a
holder of the number of Shares of Common Stock that such Convertible Security so converted would
have entitled the holder thereof to purchase in accordance with the terms and provisions of and
applicable to the Rights if such Convertible Security were converted immediately prior to the
record date for such distribution. Shares of Common Stock owned by or held for the account of the
Corporation or any majority owned subsidiary shall not be deemed outstanding for the purpose of any
adjustment required under this subsection (c).



     (d) For the purpose of any computation under subsection (b) and (c) above, the current market
price per Shares of Common Stock at any date shall be deemed to be the average of the daily Closing
Prices for the 30 days (which are not legal holidays as defined in Section 14.05) commencing 45
days (which are not legal holidays as defined in Section 14.05) before the day in question. The
Closing Price for any day shall be: (i) if the Shares of Common Stock are listed or admitted for
trading on any national securities exchange, including the Nasdaq Stock Market, the last sale price
(regular way), or the average of the closing bid and ask prices if no sale occurred, of Shares of
Common Stock on the principal securities exchange on which the Shares of Common Stock is listed;
(ii) if not listed as described in (i), the mean between the closing high bid and low asked
quotations of Shares of Common Stock on any system or automated dissemination of quotations of
securities prices then in common use, if so quoted; or (iii) if not quoted as described in clause
(ii) the Closing Price of Shares of Common Stock on any day or the average of such Closing Prices
for any period shall be the fair market value of Shares of Common Stock as determined by a member
firm of the New York Stock Exchange, Inc. selected by the Corporation.




	     (e)	(i)	 	No adjustment in the Conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this subsection (e)(i) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment; further provided, however, that any adjustments which by reason
of this subsection (e)(i) are not otherwise required to be made shall be made no later
than 3 years after the date on which occurs an event that requires an adjustment to be
made or carried forward.






	 	(ii)	 	All calculations under this Article Eighteen shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may
be. Anything in this Section 18.06 to the contrary notwithstanding, the
Corporation shall be entitled to make such reductions in the Conversion Price,
in addition to those required by this Section 18.06, as it in its discretion
shall determine to be advisable in order that any stock dividends, subdivision
of shares, distribution of rights to purchase stock or










 



63


	 	 	 	securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Corporation to its shareholders shall not be
taxable.





     (f) Whenever the Conversion Price is adjusted, as herein provided, the Corporation shall
promptly file with the Trustee and any conversion agent other than the Trustee an Officers’
Certificate setting forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the
Corporation shall prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which such adjustment becomes effective and shall send or
cause to be sent such notice of such adjustment of the Conversion Price to the Holder of each
Convertible Security at such Holder’s last address appearing on the Debt Security Register provided
for in Section 2.01 of this Indenture.



     Corporation Determination Final. The Corporation shall be responsible for making all calculations called for hereunder and under
the Notes. The Corporation shall make all these calculations using commercially reasonable means
and, absent manifest error, the Corporation’s calculations will be final and binding on
Noteholders. The Corporation shall provide a schedule of the Corporation’s calculations to the
Trustee, and the Trustee is entitled to rely upon the accuracy of the Corporation’s calculations
without independent verification.



     (g) In any case in which this Section 18.06 provides that an adjustment shall become effective
immediately after a record date for an event, the Corporation may defer until the occurrence of
such event: (i) delivering to the Holder of any Convertible Security converted after such record
date and before the occurrence of such event the additional Shares of Common Stock deliverable upon
such conversion by reason of the adjustment required by such event over and above the Shares of
Common Stock deliverable upon such conversion before giving effect to such adjustment; and (ii)
paying to such Holder any amount in cash in lieu of any fraction pursuant to Section 18.04,
provided, however, that the Corporation shall deliver to such Holder a due bill or other
appropriate instrument evidencing such Holder’s rights to receive such additional shares, and such
cash, upon the occurrence of the event requiring such adjustment. If such event does not occur, no
adjustments shall be made pursuant to this Section 18.06.



Section 18.07 Effect of Reclassification, Consolidation, Merger or Sale.




     If any of the following events occur, namely: (i) any reclassification or change of
outstanding Shares of Common Stock deliverable upon conversion of the Convertible Securities (other
than a change in par value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination, but including any change in the Shares of Common
Stock into two or more classes or series of securities); (ii) any consolidation or merger to which
the Corporation is a party (other than a consolidation or merger in which the Corporation is the
continuing corporation and which does not result in any reclassification of, or change (other than
a change in par value, or from par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination) in, outstanding Shares of Common Stock); or (iii) any
sale or conveyance of the properties and assets of the Corporation as, or substantially as, an
entirety to any other corporation; then the Corporation or such successor or
purchasing corporation, as the case may be, shall execute with the Trustee a supplemental









 



64



indenture (which shall conform to the Trust Indenture Act as in force at the date of execution of
such supplemental indenture and comply with the provisions of Article Nine) providing that each
Convertible Security shall be convertible into the kind and amount of shares of stock and other
securities or property, including cash, receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of a number of Shares of Common Stock
deliverable upon conversion of such Convertible Securities immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such supplemental indenture
shall provide for adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The Corporation shall cause notice of the execution of
such supplemental indenture to be mailed to each Holder of Convertible Securities, at his address
appearing on the Debt Security Register provided for in Section 2.01 of this Indenture.



     The above provisions of this Section shall similarly apply to successive reclassifications,
consolidations, mergers and sales.



Section 18.08 Taxes on Shares Issued.




     The delivery of stock certificates on conversions of Convertible Securities shall be made
without charge to the Holder converting a Convertible Security for any tax in respect of the issue
thereof. The Corporation shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the delivery of stock registered in any name other than of the
Holder of any Convertible Security converted, and the Corporation shall not be required to deliver
any such stock certificate unless and until the person or persons requesting the delivery thereof
shall have paid to the Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid.



Section 18.09 Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Shares
of Common Stock.




     The Corporation covenants that all Shares of Common Stock that may be delivered upon
conversion of Convertible Securities will upon delivery be fully paid, nonassessable by the
Corporation and free from all taxes, liens and charges with respect to the issue thereof.



     The Corporation covenants that if any Shares of Common Stock to be provided for the purpose of
conversion of Convertible Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be validly delivered
upon conversion, the Corporation will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be.



     The Corporation further covenants that, if the Shares of Common Stock are then listed on a
national securities exchange, it will qualify all Shares of Common Stock deliverable upon
conversion of the Convertible Securities for trading on said national securities exchange, if
permitted by and in accordance with the rules of said national securities exchange.



Section 18.10 Trustee Not Responsible.




     Neither the Trustee nor any authenticating agent nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Convertible Securities to determine









 



65



whether any
facts exist which may require any adjustment of the Conversion Price, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither the Trustee nor
any authenticating agent nor any conversion agent shall be accountable with respect to the validity
or value (or the kind or amount) of any Shares of Common Stock, or of any securities or property,
which may at any time be delivered upon the conversion of any Convertible Security; and neither the
Trustee nor any authenticating agent nor any conversion agent makes any representation with respect
thereto. Subject to the provisions of Section 7.01, neither the Trustee nor any authenticating
agent nor any conversion agent shall be responsible for any failure of the Corporation to deliver
any Shares of Common Stock or stock certificates or other securities or property or cash upon the
surrender of any Convertible Security for the purpose of conversion or for any failure of the
Corporation to comply with any of the covenants contained in this Article.



Section 18.11 Notice to Holders Prior to Certain Actions.




     In case:



     (a) the Corporation shall declare a dividend (or any other distribution) on the Shares of
Common Stock (other than in cash out of its current or retained earnings);



     (b) the Corporation shall authorize the granting to the holders of the Shares of Common Stock
of rights or warrants to subscribe for or purchase any share of any class or any other rights or
warrants;



     (c) of any reclassification or change of the Shares of Common Stock (other than a subdivision
or combination of its outstanding Shares of Common Stock, or a change in par value, or from par
value to no par value, or from no par value to par value) or, of any consolidation or merger to
which the Corporation is a party and for which approval of any stockholders of the Corporation is
required or for the sale or transfer of all or substantially all of the assets of the Corporation;
or









 



66


     (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Corporation,




in each of the cases (a) — (d) above, the Corporation shall cause to be filed with the
Trustee and the Corporation shall send or cause to be sent to each holder of Convertible
Securities at his address appearing on the Debt Security Register, provided for in Section
2.05 of this Indenture, as promptly as possible but in any event no less than 15 days prior
to the applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution or rights or warrants,
or, if a record is not to be taken, the date as of which the holders of Shares of Common
Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Shares of Common Stock of record shall be
entitled to exchange their Shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up or any
adjustment in the Conversion Price required by this Article Eighteen.



Section 18.12 Covenant to Reserve Shares.




     The Corporation covenants that it will at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Shares of Common Stock, such number of
Shares of Common Stock as shall then be deliverable upon the conversion of all outstanding
Convertible Securities.



[Signature Pages Follow]










 




67


     Wells Fargo Bank, National Association, the party of the second part, hereby accepts the
trusts in this Indenture, solely as Trustee, upon the terms and conditions herein above set forth.



     IN WITNESS WHEREOF, Mercer International Inc., the party of the first part, has caused this
Indenture to be signed and acknowledged by its President and Chief Executive Officer or its Chief
Financial Officer or any Vice President and Wells Fargo Bank, National Association, the party of
the second part, has caused this Indenture to be signed by its duly authorized officer, all as of
the day and year first above written.



	 	 	 	 	 	 	 
	 	 	
MERCER INTERNATIONAL INC.
 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  David M. Gandossi 	 	 
	 

	 	Name:
	 	 

David M. Gandossi
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 
	 
	 
 	 	 	 	 	 
	 	 	 
WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee
 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Lynn M. Steiner 
	 	 
	 

	 	Name:
	 	Lynn M. Steiner	 	 
	 
	 	Title:
	 	Vice President