exv4w5






Exhibit 4.5




 





ART TECHNOLOGY GROUP, INC.,

as Issuer,




and




                                        ,




as Trustee




                                        




INDENTURE




                                        




Dated as of                     , 20___




                                        




 















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE ONE
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	8	 
	SECTION 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	SECTION 1.04. Rules of Construction
	 	 	8	 
	 
	 	 	 	 
	ARTICLE TWO
	 	 	 	 
	 
	 	 	 	 
	THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Issuable in Series
	 	 	9	 
	SECTION 2.02. Establishment of Terms of Series of Securities
	 	 	9	 
	SECTION 2.03. Execution and Authentication
	 	 	12	 
	SECTION 2.04. Registrar and Paying Agent
	 	 	13	 
	SECTION 2.05. Paying Agent to Hold Assets in Trust
	 	 	13	 
	SECTION 2.06. Holder Lists
	 	 	14	 
	SECTION 2.07. Transfer and Exchange
	 	 	14	 
	SECTION 2.08. Replacement Securities
	 	 	15	 
	SECTION 2.09. Outstanding Securities
	 	 	15	 
	SECTION 2.10. Treasury Securities
	 	 	16	 
	SECTION 2.11. Temporary Securities
	 	 	16	 
	SECTION 2.12. Cancellation
	 	 	16	 
	SECTION 2.13. Defaulted Interest
	 	 	17	 
	SECTION 2.14. Global Securities
	 	 	17	 
	SECTION 2.15. CUSIP and ISIN Numbers
	 	 	18	 
	 
	 	 	 	 
	ARTICLE THREE
	 	 	 	 
	 
	 	 	 	 
	REDEMPTION
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Notices to Trustee
	 	 	18	 
	SECTION 3.02. Selection of Securities to be Redeemed
	 	 	19	 
	SECTION 3.03. Notice of Redemption
	 	 	19	 
	SECTION 3.04. Effect of Notice of Redemption
	 	 	20	 
	SECTION 3.05. Deposit of Redemption Price
	 	 	20	 
	SECTION 3.06. Securities Redeemed in Part
	 	 	20	 






- i -









 






	 	 	 	 	 
	 	 	Page
	ARTICLE FOUR
	 	 	 	 
	 
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Payment of Principal and Interest
	 	 	20	 
	SECTION 4.02. Maintenance of Office or Agency
	 	 	21	 
	SECTION 4.03. Corporate Existence
	 	 	21	 
	SECTION 4.04. Compliance Certificate
	 	 	22	 
	SECTION 4.05. Waiver of Stay, Extension or Usury Laws
	 	 	22	 
	SECTION 4.06. SEC Reports
	 	 	22	 
	 
	 	 	 	 
	ARTICLE FIVE
	 	 	 	 
	 
	 	 	 	 
	SUCCESSOR CORPORATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Merger, Consolidation, or Sale of Assets
	 	 	23	 
	 
	 	 	 	 
	ARTICLE SIX
	 	 	 	 
	 
	 	 	 	 
	DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	24	 
	SECTION 6.02. Acceleration
	 	 	25	 
	SECTION 6.03. Other Remedies
	 	 	26	 
	SECTION 6.04. Waiver of Past Defaults
	 	 	26	 
	SECTION 6.05. Control by Majority
	 	 	26	 
	SECTION 6.06. Limitation on Suits
	 	 	27	 
	SECTION 6.07. Rights of Holders to Receive Payment
	 	 	27	 
	SECTION 6.08. Collection Suit by Trustee
	 	 	27	 
	SECTION 6.09. Trustee May File Proofs of Claim
	 	 	27	 
	SECTION 6.10. Priorities
	 	 	28	 
	SECTION 6.11. Undertaking for Costs
	 	 	28	 
	 
	 	 	 	 
	ARTICLE SEVEN
	 	 	 	 
	 
	 	 	 	 
	TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01. Duties of Trustee
	 	 	29	 
	SECTION 7.02. Rights of Trustee
	 	 	30	 
	SECTION 7.03. Individual Rights of Trustee
	 	 	31	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	31	 
	SECTION 7.05. Notice of Default
	 	 	31	 
	SECTION 7.06. Reports by Trustee to Holders
	 	 	32	 
	SECTION 7.07. Compensation and Indemnity
	 	 	32	 
	SECTION 7.08. Replacement of Trustee
	 	 	33	 
	SECTION 7.09. Successor Trustee by Merger, Etc.
	 	 	34	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	34	 






- ii -









 






	 	 	 	 	 
	 	 	Page
	SECTION 7.11. Preferential Collection of Claims Against the Issuer
	 	 	34	 
	 
	 	 	 	 
	ARTICLE EIGHT
	 	 	 	 
	 
	 	 	 	 
	DISCHARGE OF INDENTURE; DEFEASANCE
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01. Termination of the Issuer’s Obligations
	 	 	35	 
	SECTION 8.02. Legal Defeasance and Covenant Defeasance
	 	 	36	 
	SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance
	 	 	37	 
	SECTION 8.04. Application of Trust Money
	 	 	38	 
	SECTION 8.05. Repayment to the Issuer
	 	 	39	 
	SECTION 8.06. Reinstatement
	 	 	39	 
	 
	 	 	 	 
	ARTICLE NINE
	 	 	 	 
	 
	 	 	 	 
	AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Without Consent of Holders
	 	 	39	 
	SECTION 9.02. With Consent of Holders
	 	 	40	 
	SECTION 9.03. Compliance with the Trust Indenture Act
	 	 	41	 
	SECTION 9.04. Revocation and Effect of Consents
	 	 	42	 
	SECTION 9.05. Notation on or Exchange of Securities
	 	 	42	 
	SECTION 9.06. Trustee To Sign Amendments, Etc
	 	 	42	 
	SECTION 9.07. Trustee Protected
	 	 	43	 
	 
	 	 	 	 
	ARTICLE TEN
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.01. Trust Indenture Act Controls
	 	 	43	 
	SECTION 10.02. Notices
	 	 	43	 
	SECTION 10.03. Communications by Holders with Other Holders
	 	 	45	 
	SECTION 10.04. Certificate and Opinion as to Conditions Precedent
	 	 	45	 
	SECTION 10.05. Statements Required in Certificate or Opinion
	 	 	45	 
	SECTION 10.06. Rules by Trustee and Agents
	 	 	46	 
	SECTION 10.07. Legal Holidays
	 	 	46	 
	SECTION 10.08. Governing Laws
	 	 	46	 
	SECTION 10.09. No Adverse Interpretation of Other Agreements
	 	 	46	 
	SECTION 10.10. No Recourse Against Others
	 	 	46	 
	SECTION 10.11. Successors
	 	 	46	 
	SECTION 10.12. Duplicate Originals
	 	 	46	 
	SECTION 10.13. Severability
	 	 	46	 
	SECTION 10.14. Securities in a Foreign Currency or in ECU
	 	 	47	 
	SECTION 10.15. Judgment Currency
	 	 	47	 






- iii -









 






	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE ELEVEN
	 	 	 	 
	 
	 	 	 	 
	SINKING FUNDS
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.01. Applicability of Article
	 	 	48	 
	SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities
	 	 	48	 
	SECTION 11.03. Redemption of Securities for Sinking Fund
	 	 	49	 






- iv - 









 





CROSS-REFERENCE TABLE





			
	Trust Indenture Act Section	 	Indenture Section
	§ 310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)

§ 311(a)
	 	Not Applicable

7.11
	(b)
	 	7.11
	(c)
	 	Not Applicable
	§ 312(a)
	 	2.06
	(b)
	 	10.03
	(c)
	 	10.03
	§ 313(a)
	 	7.06
	(b)
	 	7.06
	(c)
	 	7.06
	(d)
	 	7.06
	§ 314(a)
	 	4.04, 4.06; 10.05
	(b)
	 	Not Applicable
	(c)(1)
	 	10.04
	(c)(2)
	 	10.04
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	10.05
	(f)
	 	Not Applicable
	§ 315(a)
	 	7.01
	(b)
	 	7.05
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	§316(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	Not Applicable
	(a)(last sentence)
	 	2.10
	(b)
	 	6.07
	(c)
	 	9.04
	§317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.05
	§ 318(a)
	 	10.01







- v -











 






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






- vi -











 





     INDENTURE dated as of                     , 20___ between Art Technology Group, Inc., a Delaware
corporation, as Issuer (the “Issuer”), and                                         , as trustee (the “Trustee”).



THIS INDENTURE WITNESSETH




          Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture:




ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION 1.01. Definitions.




          Set forth below are certain defined terms used in this Indenture.




          “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Issuer in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.




          “Affiliate” of any Person means any other Person which directly or indirectly controls or is
controlled by, or is under direct or indirect common control with, the referent Person. For
purposes of this definition, “control” of a Person shall mean 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 “controlling,” “controlled by,” and “under common
control” shall have correlative meanings.




          “Agent” means any Registrar, Paying Agent or Service Agent.




          “amend” means to amend, supplement, restate, amend and restate or otherwise modify; and
“amendment” shall have a correlative meaning.




          “asset” means any asset or property.




          “Attributable Indebtedness,” when used with respect to any Sale and Leaseback Transaction,
means, as at the time of determination, the present value (discounted at a rate equivalent to the
Issuer’s then-current weighted average cost of funds for borrowed money as at the time of
determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in any such Sale and Leaseback
Transaction.




          “Authorized Newspaper” means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five (5) days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice



- 1 -









 






required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof
that is made or given by the Trustee shall constitute a sufficient publication of such notice.




          “Bankruptcy Law” means Title 11 of the United States Code, as amended, or any similar federal
or state law for the relief of debtors.




          “Bearer Security” means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.




          “Board of Directors” shall mean, with respect to any Person, (i) in the case of any
corporation, the board of directors of such Person, (ii) in the case of any limited liability
company, the board of managers of such Person, (iii) in the case of any partnership, the Board of
Directors of the general partner of such Person, and (iv) in any other case, the functional
equivalent of the foregoing.




          “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Issuer to have been adopted by the Board of Directors of the Issuer or pursuant to
authorization by the Board of Directors of the Issuer and to be in full force and effect on the
date of the certificate and delivered to the Trustee.




          “Business Day” means, unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate for a particular Series of Securities, a day other
than a Saturday, Sunday or other day on which banking institutions in the City of New York, New
York are authorized or required by law to close.




          “Capitalized Lease” means a lease required to be capitalized for financial reporting purposes
in accordance with GAAP.




          “Capitalized Lease Obligations” of any Person means the obligations of such Person to pay rent
or other amounts under a Capitalized Lease, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.




          “Corporate Trust Office” means the corporate trust office of the Trustee located at
                                        , or such other office, designated by the Trustee by written notice to the
Issuer, at which at any particular time its corporate trust business shall be administered.




          “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.




          “Default” means (1) any Event of Default or (2) any event, act or condition that, after notice
or the passage of time or both, would be an Event of Default.




          “Depository” means, with respect to the 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 Depository for
such Series by the Issuer, which Depository shall be a clearing agency registered under the
Exchange Act, and if at any time there is more than one such Person, “Depository” as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.




- 2 -









 








          “Discount Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02.




          “Dollars” and “$” means the currency of The United States of America.




          “ECU” means the European Currency Unit as determined by the Commission of the European Union.




          “Equity Interests” of any Person means (1) any and all shares or other equity interests
(including common stock, preferred stock, limited liability company interests and partnership
interests) in such Person and (2) all rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests in (however designated)
such shares or other interests in such Person.




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




          “Fair Market Value” means, with respect to any asset, the price (after taking into account any
liabilities relating to such assets) that would be negotiated in an arm’s-length transaction for
cash between a willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction, as such price is determined in good faith by the Board of
Directors of the Issuer or a duly authorized committee thereof, as evidenced by a resolution of
such Board of Directors or committee.




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




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect from time to time, unless otherwise
provided for in a particular Series of Securities by a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate.




          “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.02 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.




          “guarantee” means a direct or indirect guarantee by any Person of any Indebtedness of any
other Person and includes any obligation, direct or indirect, contingent or otherwise, of such
Person: (1) to purchase or pay (or advance or supply funds for the purchase or payment of)
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services (unless such purchase
arrangements are on arm’s-length terms and are entered into in the ordinary course of business), to
take-or-pay, or to maintain financial statement conditions or otherwise); or (2) entered into for
purposes of assuring in any other manner the obligee of such



- 3 -









 






Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part), and “guarantee,” when used as a verb, and “guaranteed” have correlative
meanings.




          “Hedging Obligations” of any Person means the obligations of such Person pursuant to (1) any
interest rate swap agreement, interest rate collar agreement or other similar agreement or
arrangement designed to alter the risks to that Person arising from fluctuations in interest rates,
(2) agreements or arrangements designed to alter the risks to that Person arising from fluctuations
in foreign currency exchange rates in the conduct of its operations, or (3) any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement or arrangement
designed to protect such Person against fluctuations in commodity prices, in each case entered into
in the ordinary course of business for bona fide hedging purposes and not for the purpose of
speculation.




          “Holder” means a Person in whose name a Security is registered or the holder of a Bearer
Security.




          “incur” means, with respect to any Indebtedness or Obligation, incur, create, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with
respect to such Indebtedness or Obligation.




          “Indebtedness” of any Person at any date means, without duplication:





          (1) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof);




          (2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;




          (3) all reimbursement obligations of such Person in respect of letters of credit,
letters of guaranty, bankers’ acceptances and similar credit transactions;




          (4) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except (i) trade payables and accrued expenses incurred by such Person
in the ordinary course of business in connection with obtaining goods, materials or services
and (ii) customary adjustments of purchase price, contingent payments, earnout payments or
similar obligations of such Person arising under any of the documents pertaining to any
acquisition of any Person or assets or Equity Interests of any Person or any sale, transfer
or other disposition of assets to any Person;




          (5) all Capitalized Lease Obligations of such Person;




          (6) all Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;




          (7) all Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided, however, that Indebtedness of the Issuer or its Subsidiaries



- 4 -









 







that is guaranteed by the Issuer or the Issuer’s Subsidiaries shall only be counted
once in the calculation of the amount of Indebtedness of the Issuer and its Subsidiaries on
a consolidated basis;




          (8) all Attributable Indebtedness;




          (9) to the extent not otherwise included in this definition, Hedging Obligations of
such Person, determined as the net amount of all payments that would be required to be made
in respect thereof in the event of a termination (including an early termination) on the
date of determination; and




          (10) all obligations of such Person under conditional sale or other title retention
agreements relating to assets purchased by such Person.



          The amount of any Indebtedness which is incurred at a discount to the principal amount at
maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof
as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the maximum liability of
such Person for any such contingent obligations at such date and, in the case of clause (6), the
lesser of (a) the Fair Market Value of any asset subject to a Lien securing the Indebtedness of
others on the date that the Lien attaches and (b) the amount of the Indebtedness secured.




          “Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof, and shall include the form and terms of particular Series
of Securities established as contemplated hereunder.




          “interest” with respect to any Discount Security which by its terms bears interest only after
a Maturity Date, means interest payable after such Maturity Date.




          “Issuer” means the party named as such above until a successor replaces it and thereafter
means the successor.




          “Issuer Order” means a written order signed in the name of the Issuer by an Officer, who must
be the Issuer’s principal executive officer, principal financial officer or principal accounting
officer.




          “Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory or
other), pledge, lease, easement, restriction, charge, security interest or other encumbrance of any
kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention agreement, and any
lease in the nature thereof.




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




- 5 -









 








          “Obligation” means any principal, interest, penalties, fees, indemnification, reimbursements,
costs, expenses, damages and other liabilities payable under the documentation governing any
Indebtedness.




          “Officer” means any of the following of the Issuer: the Chairman of the Board of Directors,
the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary.




          “Officers’ Certificate” means a certificate signed by two Officers (on behalf of the Issuer in
their representative capacities, and not in their individual capacities).




          “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable
to the Trustee. The counsel may (but need not) be an employee of, or counsel to, the Issuer or the
Trustee.




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




          “Plan of Liquidation,” with respect to any Person, means a plan that provides for,
contemplates or the effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously, in phases or otherwise): (1) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of such Person otherwise than as an entirety
or substantially as an entirety; and (2) the distribution of all or substantially all of the
proceeds of such sale, lease, conveyance or other disposition of all or substantially all of the
remaining assets of such Person to holders of Equity Interests of such Person.




          “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.




          “redeem” means to redeem, repurchase, purchase, defease, retire, discharge or otherwise
acquire or retire for value, and “redemption” has a correlative meaning.




          “Responsible Officer” means, when used with respect to the Trustee, any officer in the
Corporate Trust Office or equivalent office, group or department of the Trustee to whom any
corporate trust matter is referred because of such officer’s knowledge of and familiarity with the
particular subject and shall also mean any officer who shall have direct responsibility for the
administration of this Indenture.




          “Sale and Leaseback Transactions” means with respect to any Person an arrangement with any
bank, insurance company or other lender or investor or to which such lender or investor is a party,
providing for the leasing by such Person of any asset of such Person which has been or is being
sold or transferred by such Person to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such asset.




          “SEC” means the U.S. Securities and Exchange Commission.




- 6 -









 








          “Securities” means the debentures, notes or other debt instruments of the Issuer of any Series
authenticated and delivered under this Indenture.




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




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




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




          “Subsidiary” means, with respect to any Person:





          (1) any corporation, limited liability company, association or other business entity of
which more than 50% of the total voting power of the Equity Interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the Board of
Directors thereof are at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and




          (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or of one or more Subsidiaries of such Person (or any combination
thereof).



          Unless otherwise specified, “Subsidiary” refers to a Subsidiary of the Issuer.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.




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




          “U.S. Government Obligations” means direct, non-callable obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the United States pledges
its full faith and credit.




- 7 -









 








SECTION 1.02. Other Definitions.




	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“Covenant Defeasance”
	 	 	8.02	 
	“Event of Default”
	 	 	6.01	 
	“Journal”
	 	 	10.14	 
	“Judgment Currency”
	 	 	10.15	 
	“Legal Defeasance”
	 	 	8.02	 
	“mandatory sinking fund payment”
	 	 	11.01	 
	“Market Exchange Rate”
	 	 	10.14	 
	“New York Banking Day”
	 	 	10.15	 
	“optional sinking fund payment”
	 	 	11.01	 
	“Paying Agent”
	 	 	2.04	 
	“Registrar”
	 	 	2.04	 
	“Required Currency”
	 	 	10.15	 
	“Service Agent”
	 	 	2.04	 
	“Successor”
	 	 	5.01	 






SECTION 1.03. Incorporation by Reference of Trust Indenture Act. 




     Whenever this Indenture refers to a provision of the Trust Indenture Act, such provision is
incorporated by reference in, and made a part of, this Indenture. The following Trust Indenture Act
terms used in this Indenture have the following meanings:



     “indenture securities” means the Securities.



     “indenture security holder” means a Holder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



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



     All other Trust Indenture Act 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 SEC rule
and not otherwise defined herein have the meanings assigned to them therein.



SECTION 1.04. Rules of Construction.




     Unless the context otherwise requires:




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




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




          (3) references to “generally accepted accounting principles” and “GAAP” shall mean
generally accepted accounting principles or GAAP in effect as of the time and for the period
as to which such accounting principles are to be applied;




          (4) “or” is not exclusive;




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




          (6) all references in this Indenture to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and provisions of this Indenture, unless otherwise
indicated;




          (7) provisions apply to successive events and transactions;




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




          (9) the words “including,” “includes” and similar words shall not be limiting and shall
be deemed to be followed by “without limitation.”



ARTICLE TWO




THE SECURITIES




SECTION 2.01. Issuable in Series.




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




SECTION 2.02. Establishment of Terms of Series of Securities.




          At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Section 2.02(a), and either as to such
Securities within the Series or as to the Series generally in the case of Sections 2.02(a) through
2.02(y)) by or pursuant to a Board Resolution, and set forth or determined in the manner




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provided in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate
pursuant to authority granted under a Board Resolution:




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




          (b) the price or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the Series will be issued;




          (c) any limit upon the aggregate principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.07, 2.08, 2.11, 3.06 or 9.05);




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




          (e) the rate or rates (which may be fixed or variable) per annum or, if applicable, the method
used to determine such rate or rates (including, but not limited to, any commodity, commodity
index, stock exchange index or financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if any, shall accrue, the date or
dates on which such interest, if any, shall commence and be payable and any regular record date for
the interest payable on any interest payment date;




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




          (g) if applicable, the period or periods within which, the price or prices at which and the
other detailed terms and conditions upon which the Securities of the Series may be redeemed, in
whole or in part, at the option of the Issuer;




          (h) the obligations, if any, of the Issuer to redeem or purchase the Securities of the Series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the
date or dates on which or period or periods within which, the price or prices at which and the
other detailed terms and provisions upon which Securities of the Series shall be redeemed or
purchased, in whole or in part, pursuant to such obligations;




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




          (j) the forms of the Securities of the Series in bearer or fully registered form (and, if in
fully registered form, whether the Securities will be issuable as Global Securities);




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          (k) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon acceleration or declaration of acceleration of
the maturity thereof pursuant to Section 6.02;




          (l) the currency of denomination of the Securities of the Series, which may be in Dollars or
any Foreign Currency;




          (m) the designation of the currency, currencies or currency units in which payment of the
principal of and interest, if any, on the Securities of the Series will be made;




          (n) if payments of principal of or interest, if any, on the Securities of the Series are to be
made in one or more currencies or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect to such payments will be
determined;




          (o) the terms, if any, of subordination of the Securities of the Series;




          (p) any provisions relating to any security provided for the Securities of the Series;




          (q) any addition to or change in the Events of Default which applies to any Securities of the
Series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 6.02;




          (r) any addition to or change in the covenants set forth in Articles Four or Five which
applies to Securities of the Series;




          (s) the provisions, if any, relating to conversion of any Securities of such Series into
Equity Interests, including if applicable, the conversion price, the conversion period, provisions
as to whether conversion will be mandatory, at the option of the Holders thereof or at the option
of the Issuer, the events requiring an adjustment of the conversion price and provisions affecting
conversion if such Series of Securities are redeemed;




          (t) any exchange features of the Securities of such Series;




          (u) any addition to or change in the provisions relating to satisfaction and discharge of
Obligations under this Indenture with respect to the Securities of such Series, or in the
provisions relating to legal defeasance or covenant defeasance under this Indenture with respect to
the Securities of such Series;




          (v) any addition to or change in the provisions relating to modification of this Indenture
both with and without the consent of Holders of the Securities of such Series;




          (w) any other terms or provisions of the Securities of the Series (which may amend,
supplement, modify or delete any provision of this Indenture insofar as it applies to such Series);
and




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          (x) any registrars, paying agents, service agents, depositories, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to Securities of such Series
if other than those appointed herein.




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




SECTION 2.03. Execution and Authentication.




          One Officer of the Issuer (who shall have been duly authorized by all requisite corporate
actions) shall sign the Securities for the Issuer by manual or facsimile signature.




          If an Officer whose signature is on a Security was an Officer at the time of such execution
but no longer holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.




          A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.




          The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, upon receipt by the Trustee of an Issuer Order. Such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing. Each Security shall be dated the date of its authentication unless otherwise provided by a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.




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




          Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.02) shall be fully protected in relying on: (i) the Board Resolution,
supplemental indenture or Officers’ Certificate establishing the form of the Securities of that
Series or of Securities within that Series and the terms of the Securities of that Series or of
Securities within that Series, (ii) an Officers’ Certificate complying with Section 10.05, and
(iii) an Opinion of Counsel complying with Section 10.05.




          The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to
authenticate Securities. Unless otherwise provided in the appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An




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authenticating agent has the same rights as an Agent to deal with the Issuer and Affiliates of
the Issuer. The Trustee shall have the right to decline to authenticate and deliver any Securities
of such Series if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken or if the Trustee in good faith by shall determine that such action would expose
the Trustee to personal liability.




SECTION 2.04. Registrar and Paying Agent.




          The Issuer shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.02, an office or agency where (a)
Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”), (b) Securities of such Series may be presented or surrendered for payment (“Paying
Agent”) and (c) notices and demands to or upon the Issuer in respect of the Securities of such
Series and this Indenture may be served (“Service Agent”). The Issuer may act as Registrar or
Paying Agent. The Registrar shall keep a register with respect to each Series of Securities and to
their transfer and exchange. The term “Registrar” includes any co-registrar; the term “Paying
Agent” includes any additional paying agent; and the term “Service Agent” includes any additional
service agent. The Issuer hereby appoints the Trustee the initial Registrar, Paying Agent and
Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case
may be, is appointed prior to the time Securities of that Series are first issued. The Issuer will
give prompt written notice to the Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Service Agent. If at any time the Issuer shall fail to
maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the
Trustee with the name and address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.




          The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which agreement shall implement the provisions of this Indenture that relate to such
Agent. The Issuer shall notify the Trustee, in advance, of the name and address of any such Agent.
If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.




          The Issuer may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Issuer of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified
pursuant to Section 2.02 for Securities of any Series for such purposes. The Issuer will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
name or address of any such co-registrar, additional paying agent or additional service agent.




SECTION 2.05. Paying Agent to Hold Assets in Trust.




          The Issuer shall require each Paying Agent other than the Trustee or the Issuer or any
Subsidiary to agree in writing that each Paying Agent shall hold in trust for the benefit of




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Holders or the Trustee all assets held by the Paying Agent for the payment of principal of, or
interest on, the Securities (whether such assets have been distributed to it by the Issuer or any
other obligor on the Securities), and shall notify the Trustee of any Default by the Issuer (or any
other obligor on the Securities) in making any such payment. The Issuer at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for any assets
disbursed, and the Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Issuer to the Paying Agent, the Paying Agent shall
have no further liability for such assets. If the Issuer or a Subsidiary of the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
of any Series of Securities all money held by it as Paying Agent.




SECTION 2.06. Holder 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 the Holders of each Series of Securities and
shall otherwise comply with Trust Indenture Act § 312(a). If the Trustee is not the Registrar, the
Issuer shall furnish to the Trustee at least ten (10) days before each interest payment date with
respect to any Series of Securities 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 such Series of Securities, which list may be conclusively relied upon
by the Trustee.




SECTION 2.07. Transfer and Exchange.




          Subject to Section 2.14, where Securities of a Series are presented to the Registrar with a
request to register a transfer or to exchange them for an equal principal amount of Securities of
the same Series, the Registrar shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his or
her attorney duly authorized in writing. To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Securities at the Registrar’s request. No
service charge shall be made for any registration of transfer or exchange (except as otherwise
expressly permitted herein), but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06
or 9.05).




          Without the prior written consent of the Issuer, the Registrar shall not be required to
register the transfer or exchange of Securities of any Series (i) during the period beginning at
the opening of business fifteen (15) days before the mailing of a notice of redemption of
Securities of that Series selected for redemption and ending at the close of business on the day of
such mailing, or (ii) selected, called or being called for redemption in whole or in part pursuant
to Article Three, except the unredeemed portion of such Securities, if any.




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SECTION 2.08. Replacement Securities.




          If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Issuer shall issue and the
Trustee shall authenticate and deliver a replacement Security of the same Series if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any
other reasonable requirements of the Trustee. If required by the Trustee or the Issuer, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer and the Trustee to
protect the Issuer, the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced. The Issuer and the Trustee may each charge such Holder for its reasonable
out-of-pocket expenses in replacing a Security pursuant to this Section 2.08, including reasonable
fees and expenses of counsel and of the Trustee.




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




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




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




SECTION 2.09. Outstanding Securities.




          Subject to Section 2.10, the Securities outstanding at any time are all the Securities
authenticated by the Trustee except those cancelled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with
the provisions hereof and those described in this Section as not outstanding. Subject to Section
2.10, a Security does not cease to be outstanding because the Issuer or any of its Affiliates holds
the Security.




          If a Security is replaced pursuant to Section 2.08 (other than a mutilated Security
surrendered for replacement), it ceases to be outstanding unless a Responsible Officer of the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.




          If the Paying Agent (other than the Issuer, a Subsidiary of the Issuer or an Affiliate of the
Issuer) holds on the Maturity Date of Securities of a Series money sufficient to pay such
Securities payable on that date, then on and after that date such Securities of the Series cease to
be outstanding and interest on them ceases to accrue.




- 15 -









 








          In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity Date thereof pursuant to Section
6.02.




          If the principal amount of any Security is considered paid under Section 4.01, it ceases to be
outstanding and interest ceases to accrue. If on any redemption date or the Maturity Date the
Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds cash in Dollars or
U.S. Government Obligations, or a combination thereof, in amounts sufficient to pay all of the
principal and interest due on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.




SECTION 2.10. Treasury Securities.




     In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver
Securities of a Series owned by the Issuer or an Affiliate of the Issuer shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver only Securities of a
Series that the Trustee knows are so owned shall be so disregarded.



SECTION 2.11. Temporary Securities.




          Until definitive Securities of a Series are ready for delivery, the Issuer may prepare and the
Trustee shall authenticate temporary Securities upon an Issuer Order. Temporary Securities shall be
substantially in the form of definitive Securities of the same Series but may have variations that
the Issuer considers appropriate for temporary Securities. Without unreasonable delay, the Issuer
shall prepare and the Trustee shall authenticate definitive Securities of the same Series and
Maturity Date in exchange for temporary Securities. Until such exchange, temporary Securities shall
be entitled to the same rights, benefits and privileges as definitive Securities of the same
Series.




SECTION 2.12. Cancellation.




          The Issuer at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Issuer or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Issuer, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation in accordance with its customary procedures. Certification of the
destruction of all cancelled Securities shall be delivered to the Issuer upon request by the
Issuer. Subject to Section 2.08, the Issuer may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation. If the Issuer or any of its
Subsidiaries shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of




- 16 -









 







the Indebtedness represented by such Securities unless and until the same are surrendered to
the Trustee for cancellation pursuant to this Section 2.12.




SECTION 2.13. Defaulted Interest.




          If the Issuer defaults in a payment of interest on the Securities of any Series, it shall pay
the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest,
in any lawful manner. The Issuer may pay the defaulted interest to the Persons who are the Holders
of the Securities of such Series on a subsequent special record date, which date shall be the
fifteenth (15th) day next preceding the date fixed by the Issuer for the payment of
defaulted interest or the next succeeding Business Day if such date is not a Business Day. At
least fifteen (15) days before any such subsequent special record date, the Issuer (or, upon the
written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent special record
date, the payment date and the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.




SECTION 2.14. Global Securities.




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




          (b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in
Section 2.07 of this Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.07 of this Indenture for Securities registered in the names of Holders other
than the Depository for such Security or its nominee only if (i) such Depository notifies the
Issuer that it is unwilling or unable to continue as Depository for such Global Security or if at
any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Issuer fails to appoint a successor Depository registered as a clearing agency
under the Exchange Act within ninety (90) days of such event, (ii) the Issuer executes and delivers
to the Trustee an Officers’ Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global
Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in such names as the
Depository shall direct in writing in an aggregate amount equal to the principal amount of the
Global Security with like tenor and terms. Except as provided in this Section 2.14(b), a Global
Security may not be transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to such Depository or
another nominee of such Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository.




          (c) Legend. Any Global Security issued hereunder shall bear a legend in substantially
the following form:




- 17 -









 








     “This Security is a Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of the Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depository to a nominee of the Depository, by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such a successor Depository.”



          (d) Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under this Indenture.




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




          (f) Consents, Declaration and Directions. Except as provided in Section 2.09 (last
sentence), the Issuer, the Trustee and any Agent shall treat a Person as the Holder of such
principal amount of outstanding Securities of such Series represented by a Global Security as shall
be specified in a written statement of the Depository with respect to such Global Security, for
purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.




SECTION 2.15. CUSIP and ISIN Numbers.




          The Issuer in issuing the Securities may use “CUSIP” or “ISIN” numbers, and if so, the Trustee
shall use the “CUSIP” or “ISIN” numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice may state that no representation is made as to the
correctness or accuracy of the “CUSIP” or “ISIN” numbers printed in the notice or on the
Securities, and that reliance may be placed only on the other identification numbers printed on the
Securities. The Issuer will promptly notify the Trustee of any change in the “CUSIP” or “ISIN”
numbers.




ARTICLE THREE




REDEMPTION




SECTION 3.01. Notices to Trustee.




          The Issuer may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Issuer wants or is obligated to redeem
prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms
of such Securities, it shall notify the Trustee of the redemption date and the principal amount of
Series of Securities to be redeemed. The Issuer shall give the notice of




- 18 -









 







redemption to the Trustee at least forty-five (45) days before the redemption date (unless a
shorter notice shall be agreed to by the Trustee in writing), together with such documentation and
records as shall enable the Trustee to select the Securities to be redeemed.




SECTION 3.02. Selection of Securities to be Redeemed.




          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed as follows:





          (1) if such Securities are listed on a national securities exchange, in compliance with
the requirements of the principal national securities exchange on which such Securities are
listed; or




          (2) if such Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate.



          In the event of partial redemption, the Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in amounts of $1,000 or integral
multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations
pursuant to Subsection 2.02(i), the minimum principal denomination for each Series and integral
multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for redemption.




SECTION 3.03. Notice of Redemption.




          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, at least thirty (30) days but not more than sixty
(60) days before a redemption date, the Issuer shall mail, or cause to be mailed, a notice of
redemption by first-class mail, postage prepaid, to each Holder whose Securities are to be redeemed
and if any Bearer Securities are outstanding, publish on one occasion a notice in an Authorized
Newspaper (except that a redemption referred to in Article Eight may be more than sixty (60) days
before the applicable redemption date). At the Issuer’s request, the Trustee shall forward the
notice of redemption in the Issuer’s name and at the Issuer’s expense. Each notice for redemption
shall identify the Securities of the Series to be redeemed (including the CUSIP or ISIN number, if
any) and shall state:





          (1) the date fixed for the redemption of such Securities;




          (2) the price fixed for the redemption of such securities;




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



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




          (5) that interest on Securities of the Series called for redemption shall cease to
accrue on and after the redemption date thereof, and the only remaining right of the Holders
of such Securities shall be to receive payment of the redemption price therefor upon
surrender to the Trustee or Paying Agent of the Securities to be redeemed; and




          (6) any other information as may be required by the terms of the particular Series or
the Securities of a Series being redeemed.



          At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense.




SECTION 3.04. Effect of Notice of Redemption.




          Once notice of redemption is mailed or published as provided in accordance with Section 3.03,
Securities of a Series called for redemption shall become due and payable on the redemption date
and at the redemption price therefor. A notice of redemption may not be conditional. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to
the redemption date; provided that installments of interest whose Stated Maturity is on or prior to
the redemption date shall be payable to the Holders of such Securities (or one or more predecessor
Securities) registered at the close of business on the relevant record date therefor according to
their terms and the terms of this Indenture.




SECTION 3.05. Deposit of Redemption Price. 




          On or before 10:00 a.m. New York time on the redemption date, the Issuer shall deposit with
the Paying Agent funds sufficient to pay the redemption price of and accrued and unpaid interest,
if any, on all Securities to be redeemed on that date.




SECTION 3.06. Securities Redeemed in Part.




          Upon surrender of a Security that is to be redeemed in part, the notice of redemption that
relates to such Security shall state the portion of the principal amount thereof to be redeemed. A
new Security or Securities of the same Series and the same Maturity Date equal in principal amount
to the unredeemed portion of the original Security shall be issued in the name of the Holder
thereof upon surrender and cancellation of the original Security surrendered.




ARTICLE FOUR




COVENANTS




SECTION 4.01. Payment of Principal and Interest.




          The Issuer shall pay or cause to be paid the principal of and interest on the Securities of
each Series in the manner provided in such Securities and this Indenture. An




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installment of principal of, or interest on, Securities shall be considered paid on the date
it is due if the Trustee or the Paying Agent (other than the Issuer or an Affiliate thereof) holds
on that date funds designated for and sufficient to pay the installment. The Paying Agent shall
return to the Issuer promptly, and in any event, no later than five (5) Business Days following the
date of payment, any money (including accrued interest) that exceeds such amount of principal and
interest paid on the Securities. If a payment date is not a Business Day, at a place of payment,
payment may be made at that place on the next succeeding day that is a Business Day, and no
interest shall accrue on such payment for the intervening period.




SECTION 4.02. Maintenance of Office or Agency.




          The Issuer covenants and agrees for the benefit of the Holders of each Series of Securities
that it will maintain in the Borough of Manhattan, The City of New York, New York the office or
agency (which may be an office or drop facility of the Trustee, the Registrar or the Service Agent,
as applicable, for such Securities or an Affiliate of such Trustee, the Registrar or the Service
Agent, as applicable, for such Securities) where such Securities may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Issuer in
respect of such Securities and this Indenture may be served. The Issuer will give prompt written
notice to the Trustee for such Securities of the location, and any change in the location, of such
office or agency. If at any time the Issuer shall fail to maintain any such required office or
agency or shall fail to furnish such Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of such
Trustee.




          The Issuer may also from time to time designate one or more other offices or agencies where
Holders of a Series of Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations. The Issuer will give prompt written notice to the
Trustee for such Series of Securities of any such designation or rescission and of any change in
the location of any such other office or agency.




          With respect to each Series of Securities, the Issuer hereby designates the Corporate Trust
Office of the Trustee for such Securities as one such office or agency of the Issuer in accordance
with Section 2.05 hereof.




SECTION 4.03. Corporate Existence.




          Except as otherwise permitted by Article Five and the other provisions of this Indenture, the
Issuer shall do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and its material rights (charter and statutory) and material
franchises; provided, however, that the Issuer shall not be required to preserve any such right or
franchise if the Board of Directors of the Issuer shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Issuer and its Subsidiaries, taken as a
whole, or if the failure so to preserve would not reasonably be expected to have a material adverse
effect on the Issuer and its Subsidiaries, taken as a whole.




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SECTION 4.04. Compliance Certificate.




          The Issuer shall deliver to the Trustee with respect to such Series, within one hundred twenty
(120) days after the end of each fiscal year of the Issuer, an Officers’ Certificate stating that,
in the course of the performance by the signers of their duties as Officers of the Issuer, they
would normally have knowledge of any Default and whether or not the signers know of any Default
that occurred during such fiscal year. If they do know of such a Default, the certificate shall
describe the Default, its status and what action, if any, the Issuer is taking or proposes to take
with respect thereto. The Issuer also shall comply with Trust Indenture Act § 314(a)(4).




SECTION 4.05. Waiver of Stay, Extension or Usury Laws.




          The Issuer covenants (to the extent permitted by applicable law) that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury law or other law that would prohibit or forgive the Issuer from
paying all or any portion of the principal of and/or interest on such Securities, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the performance of this
Indenture, and (to the extent permitted by applicable law) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.




SECTION 4.06. SEC Reports.




          (a) Whether or not required by the SEC’s rules and regulations, so long as any Securities of
any Series are outstanding, the Issuer will furnish to the Holders of such Securities, cause the
Trustee with respect to such Securities to furnish to the Holders of such Securities, or file
electronically with the SEC through the SEC’s Electronic Data Gathering, Analysis and Retrieval
System (or any successor system), within the time periods (including any extensions thereof)
specified in the SEC’s rules and regulations:





          (1) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor forms) if the
Issuer were required to file these Forms, including a “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” and, with respect to the annual
information only, a report on the annual financial statements by the Issuer’s independent
accountants; and




          (2) all current reports that would be required to be filed with the SEC on Form 8-K (or
any successor form) if the Issuer were required to file these reports.



          (b) In addition, whether or not required by the SEC’s rules and regulations, the Issuer will
file a copy of all of the information and reports referred to in clauses (a)(1) and (a)(2) above
with the SEC for public availability within the time periods applicable to the Issuer under Section
13(a) or 15(d) of the Exchange Act (unless the SEC will not accept the filing, in which case the
Issuer shall make the information available to securities analysts and prospective




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investors upon request). The Issuer also shall comply with the other provisions of Trust
Indenture Act § 314(a).




ARTICLE FIVE




SUCCESSOR CORPORATION




SECTION 5.01. Merger, Consolidation, or Sale of Assets.




          (a) The Issuer will not, directly or indirectly, in a single transaction or a series of
related transactions, (1) consolidate or merge with or into any other Person (other than a merger
with an Affiliate of the Issuer solely for the purpose of changing the Issuer’s jurisdiction of
incorporation to another State of the United States or forming a direct holding company of the
Issuer), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially
all of the assets of the Issuer or the Issuer and its Subsidiaries (taken as a whole) to any other
Person or (2) effect a Plan of Liquidation, unless, in either case:





          (1) either:




          (i) the Issuer will be the surviving or continuing corporation; or




          (ii) the Person formed by or surviving such consolidation or merger (if not the
Issuer) or to which such sale, lease, conveyance or other disposition shall be made
(or, in the case of a Plan of Liquidation, any Person to which assets are
transferred) (collectively, the “Successor”) is a corporation organized and existing
under the laws of any State of the United States of America or the District of
Columbia, and the Successor expressly assumes, by a supplemental indenture hereto in
form and substance satisfactory to the Trustee, all of the Obligations of the Issuer
under the Securities and this Indenture; and




          (2) immediately after giving effect to such transaction and the assumption of the
obligations as set forth in clause (a)(1) above, if applicable, and the incurrence of any
Indebtedness to be incurred in connection therewith, no Default shall have occurred and be
continuing.



          (b) For purposes of the foregoing, the sale, lease, transfer, conveyance or other disposition
or assignment of all or substantially all of the assets of one or more of the Issuer’s
Subsidiaries, the Equity Interests of which constitute all or substantially all of the assets of
the Issuer, will be deemed to be the transfer of all or substantially all of the assets of the
Issuer.




          (c) Upon any consolidation, combination or merger of the Issuer, or any sale, lease, transfer,
conveyance or other disposition or assignment of all or substantially all of the assets of the
Issuer in accordance with the foregoing, in which the Issuer is not the continuing obligor under
the Securities and this Indenture, the surviving entity formed by such consolidation or into which
the Issuer is merged or the entity to which the sale, lease, transfer, conveyance, or other
disposition or assignment is made will succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under the Securities and this Indenture with the same effect





- 23 -












 




as if such surviving entity had been named therein as the Issuer, and, except in the case of
such a lease, the Issuer will be released from its Obligations under the Securities and this
Indenture.




          (d) This Section 5.01 shall not apply to (i) any sale, lease, transfer, conveyance or other
disposition or assignment of assets between or among (A) the Issuer and any of its Subsidiaries or
(B) two or more Subsidiaries of the Issuer, or (ii) any merger or consolidation between the Issuer
and any of its Subsidiaries or between any two Subsidiaries of the Issuer.




ARTICLE SIX




DEFAULT AND REMEDIES




SECTION 6.01. Events of Default.




          “Event of Default,” wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:





          (1) failure by the Issuer to pay interest on any of Security of that Series when it
becomes due and payable and the continuance of any such failure for thirty (30) consecutive
days;




          (2) failure by the Issuer to pay the principal on any Security of that Series when it
becomes due and payable, whether at Stated Maturity, upon redemption, upon purchase, upon
acceleration or otherwise;




          (3) failure to deposit any sinking fund payment, when and as due in respect of any
Security of that Series;




          (4) failure by the Issuer to comply with any other agreement or covenant in this
Indenture and the continuance of any such failure for sixty (60) consecutive days after
notice of such failure has been given to the Issuer by the Trustee or by the Holders of at
least twenty-five percent (25%) of the aggregate principal amount of the Securities of that
Series then outstanding;




          (5) the Issuer pursuant to or within the meaning of any Bankruptcy Law:




          (i) commences a voluntary case,




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




          (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its assets,



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          (iv) makes a general assignment for the benefit of its creditors, or




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




          (i) is for relief against the Issuer as debtor in an involuntary case,




          (ii) appoints a Custodian of the Issuer or for all or substantially all of its
assets, or




          (iii) orders the liquidation of the Issuer, and the order or decree remains
unstayed and in effect for ninety (90) days; or




          (7) any other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.02(r).



SECTION 6.02. Acceleration.




          If an Event of Default specified in Section 6.01(5) or Section 6.01(6) with respect to the
Issuer occurs, all outstanding Securities shall become immediately due and payable without any
further action or notice. If an Event of Default (other than an Event of Default specified in
Section 6.01(5) or Section 6.01(6) with respect to the Issuer) shall have occurred and be
continuing under this Indenture and the Securities of any Series, the Trustee, by notice to the
Issuer, or the Holders of at least twenty-five percent (25%) in aggregate principal amount of the
Securities of such Series then outstanding by notice to the Issuer and the Trustee, may declare all
amounts owing under such Securities of such Series to be due and payable immediately. Upon such
acceleration or declaration of acceleration, the aggregate principal (or, if any Securities of that
Series are Discount Securities, such portion of the principal as may be specified in the terms of
such Securities) of and accrued and unpaid interest on the outstanding Securities of such Series
shall immediately become due and payable; provided, however, that after such acceleration or
declaration of acceleration, but before a judgment or decree based on acceleration or declaration
of acceleration, the Holders of a majority in aggregate principal amount of such outstanding
Securities of such Series may rescind and annul such acceleration or declaration of acceleration:





          (1) if the rescission would not conflict with any judgment or decree;




          (2) if all existing Defaults have been cured or waived (except nonpayment of principal
and interest that has become due solely because of this acceleration);




          (3) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due (otherwise than by such
declaration of acceleration), has been paid;




          (4) if the Issuer has paid to the Trustee its reasonable compensation and reimbursed
the Trustee of its expenses, disbursements and advances; and



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          (5) in the event of a cure or waiver of a Default of the type set forth in Section
6.01(5) or Section 6.01(6), the Trustee shall have received an Officers’ Certificate and an
Opinion of Counsel that such Default has been cured or waived.


No such rescission shall affect any subsequent Default or impair any right consequent thereto.




SECTION 6.03. Other Remedies.




          If a Default with respect to Securities of any Series at the time outstanding occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of, or interest on, such Securities or to enforce the performance
of any provision of such Securities or this Indenture.




          The Trustee for such Securities may maintain a proceeding even if it does not possess any of
such Securities or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of Securities in exercising any right or remedy accruing upon a Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy
is exclusive of any other remedy. All remedies are cumulative to the extent permitted by law.




SECTION 6.04. Waiver of Past Defaults.




          Holders of at least a majority in aggregate principal amount of the then outstanding
Securities of any Series (which may include consents obtained in connection with a tender offer or
exchange offer of such Securities), by notice to the Trustee for such Securities, may, on behalf of
all of the Holders of such Securities, waive an existing Default with respect to such Securities
and its consequences, except a Default in the payment of principal or interest on such Securities;
provided, however, that the Holders of a majority in aggregate principal amount of the then
outstanding Securities of any Series may, on behalf of all of the Holders of such Securities,
rescind an acceleration of such Securities and its consequences, including any related payment
Default that resulted from such acceleration. When a Default is waived, it is cured and ceases.




SECTION 6.05. Control by Majority.




          (a) The Holders of at least a majority in aggregate principal amount of the outstanding
Securities of any Series may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee of such Series or exercising any trust or power conferred on it
with respect to such Series. Subject to Section 7.01, however, the Trustee may refuse to follow
any direction that conflicts with any law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.




          (b) In the event the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee shall be entitled to indemnification against any loss or expense caused by
taking such action or following such direction.




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SECTION 6.06. Limitation on Suits.




          (a) Subject to Section 6.07, no Holder of any Securities of any Series will have any right to
institute any proceeding with respect to this Indenture or such Securities for any remedy
thereunder, unless the Trustee for such Securities:





          (1) has failed to act for a period of sixty (60) consecutive days after receiving
notice of a continuing Event of Default from such Holder and a request to act by Holders of
at least twenty-five percent (25%) in aggregate principal amount of the outstanding
Securities of such Series;




          (2) has been offered indemnity satisfactory to it in its reasonable judgment; and




          (3) has not received from the Holders of a majority in aggregate principal amount of
the outstanding Securities of such Series a direction inconsistent with such request.



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




SECTION 6.07. Rights of Holders to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of any
Securities of any Series to receive payment of principal of, and interest on, such Securities, on
or after the respective due dates expressed in such Securities (including, if applicable, in
connection with an offer to purchase or redeem), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of
such Holder.




SECTION 6.08. Collection Suit by Trustee.




          If a Default specified in Section 6.01(1), 6.01(2) or 6.01(3) with respect to Securities of
any Series occurs and is continuing, the Trustee for such Securities may recover judgment in its
own name and as trustee of an express trust against the Issuer or any other obligor on such
Securities for the whole amount of principal and accrued interest and fees remaining unpaid,
together with interest on overdue principal and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the rate per annum borne by
such Securities and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel.




SECTION 6.09. Trustee May File Proofs of Claim.




          The Trustee for each Series of Securities may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of such Trustee (including
any claim for the compensation, expenses, disbursements and advances of




 - 27 - 









 




such Trustee, its agents and counsel) and the Holders of the Securities for which it acts as
trustee allowed in any judicial proceedings relating to the Issuer (or any other obligor upon such
Securities), its creditors or its property and shall be entitled and empowered to collect, receive
and distribute any monies or other property payable or deliverable on any such claims, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder of such Securities to
make such payments to such Trustee and, in the event that such Trustee shall consent to the making
of such payments directly to such Holders, to pay to such Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and
counsel, and any other amounts due such Trustee under this Indenture. Nothing herein contained
shall be deemed to authorize such Trustee to authorize or consent to or accept or adopt on behalf
of any Holder for which it acts as trustee any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of such Holder, or to authorize such Trustee to
vote in respect of the claim of any such Holder in any such proceeding. The Trustee shall be
entitled to participate as a member of any official committee of creditors in the matters as it
deems necessary or advisable.




SECTION 6.10. Priorities.




          If the Trustee for any Series of Securities collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:





     First: to the Trustee, its agents and attorneys for amounts due under this
Indenture, including payment of all reasonable compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of such Securities for interest accrued on such Securities,
ratably, without preference or priority of any kind, according to the amounts due and
payable on such Securities for interest; and




     Third: to Holders of such Securities for principal amounts due and unpaid on
such Securities, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal; and




     Fourth: to the Issuer with respect to such Securities or to such other Person
or Persons as a court of competent jurisdiction shall direct.



          The Trustee, upon prior notice to the Issuer, may fix a record date and payment date for any
payment to Holders of Securities pursuant to this Section 6.10.




SECTION 6.11. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against any Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07 hereof, or




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a suit by Holders of more than 10% in aggregate principal amount of the then outstanding
Securities of any Series.




ARTICLE SEVEN




TRUSTEE




SECTION 7.01. Duties of Trustee.




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




          (b) Except during the continuance of a Default:





          (1) The Trustee need perform only those duties as are specifically set forth herein or
in the Trust Indenture Act, and no duties, covenants, responsibilities or obligations shall
be implied in this Indenture against the Trustee.




          (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates (including Officers’ Certificates) or opinions (including Opinions of Counsel)
furnished to the Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture.



          (c) Notwithstanding anything to the contrary herein, the Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:





          (1) This paragraph does not limit the effect of Section 7.01(b).




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




          (3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or to
take or omit to take any action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment of such funds is not
assured to it.




 - 29 - 









 








          (e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.01.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




          (g) In the absence of bad faith, negligence or willful misconduct on the part of the Trustee,
the Trustee shall not be responsible for the application of any money by any Paying Agent other
than the Trustee.




SECTION 7.02. Rights of Trustee.




          Subject to Section 7.01:




          (a) The Trustee may rely conclusively on any resolution, certificate (including any Officers’
Certificate), statement, instrument, opinion (including any Opinion of Counsel), notice, request,
direction, consent, order, bond, debenture, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in such document.




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




          (c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent (other than an agent who is an employee of the Trustee)
appointed with due care.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it reasonably believes to be authorized or within its rights or powers under this Indenture.




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




          (f) 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 Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby.




          (g) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate (including any Officers’ Certificate), statement, instrument,
opinion (including any Opinion of Counsel), notice, request, direction, consent,




 - 30 - 









 







order, bond, debenture, 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, upon
reasonable notice to the Issuer, to examine the books, records, and premises of the Issuer,
personally or by agent or attorney at the sole cost of the Issuer.




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




          (i) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as duties.




          (j) Except with respect to Section 4.01 and Section 4.04, the Trustee shall have no duty to
inquire as to the performance of the Issuer with respect to the covenants contained in Article
Four. In addition, the Trustee shall not be deemed to have knowledge of any Default except (i) any
Default occurring pursuant to Section 4.01, Section 4.04, Section 6.01(1), Section 6.01(2) or
Section 6.01(3) or (ii) any Default of which the Trustee shall have received written notification.




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




SECTION 7.03. Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Issuer or an Affiliate of the Issuer with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.




SECTION 7.04. Trustee’s Disclaimer.




          The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for the Issuer’s use of
the proceeds from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication.




SECTION 7.05. Notice of Default.




          If a Default occurs and is continuing with respect to the Securities of any Series and the
Trustee receives written notice of such Default, the Trustee shall mail to each Holder of the
Securities of that Series and, if any Bearer Securities are outstanding, publish on one occasion in
an Authorized Newspaper, notice of a Default within thirty (30) days after it occurs or, if later,
after a Responsible Officer of the Trustee has knowledge of such Default. Except in the case of a
Default in payment of principal of or interest on any Security of any Series, the Trustee may
withhold the notice if and so long as the Board of Directors, the executive




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committee, or a trust committee of directors and/or Responsible Officers, of the Trustee in
good faith determines that withholding the notice is in the interests of Holders of that Series.




SECTION 7.06. Reports by Trustee to Holders.




          Within sixty (60) days after each January 1, beginning with January 1, 20___, the Trustee
shall, to the extent that any of the events described in Trust Indenture Act § 313(a) occurred
within the previous twelve months, but not otherwise, mail to each Holder a brief report dated as
of such date that complies with Trust Indenture Act § 313(a). The Trustee also shall comply with
Trust Indenture Act §§ 313(b), 313(c) and 313(d).




          A copy of each report at the time of its mailing to Holders of any Series shall be filed with
the SEC and each stock exchange on which the Securities of that Series are listed. The Issuer shall
promptly notify the Trustee when Securities of any Series are listed on any stock exchange.




          The Issuer shall notify the Trustee if the Securities of any Series become listed on any
securities exchange or of any delisting thereof, and the Trustee shall comply with Trust Indenture
Act § 313(d).




SECTION 7.07. Compensation and Indemnity.




          The Issuer shall pay to the Trustee from time to time such compensation as the Issuer and the
Trustee shall from time to time agree in writing for its services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Issuer shall reimburse the Trustee upon request for all reasonable disbursements, expenses and
advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to
the compensation for its services, except any such disbursements, expenses and advances as may be
attributable to the Trustee’s negligence, bad faith or willful misconduct. Such expenses shall
include the reasonable fees and expenses of the Trustee’s agents and counsel.




          The Issuer shall indemnify each of the Trustee or any predecessor Trustee and its agents for,
and hold them harmless against, any and all loss, damage, claims (including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee)), liability or expense incurred
by them arising out of or in connection with the acceptance or administration of this trust
(including the reasonable costs and expenses of defending themselves against or investigating any
claim or liability in connection with the exercise or performance of any of the Trustee’s rights,
powers or duties hereunder), except in each of the foregoing cases to the extent caused by any
negligence, bad faith or willful misconduct on their part. The Trustee shall notify the Issuer
promptly of any claim asserted against the Trustee or any of its agents for which it may seek
indemnity. The Issuer may, subject to the approval of the Trustee (which approval shall not be
unreasonably withheld), defend the claim and the Trustee shall cooperate in the defense. The
Trustee and its agents subject to the claim may have separate counsel and the Issuer shall pay the
reasonable fees and expenses of such counsel; provided, however, that the Issuer will not be
required to pay such fees and expenses if, subject to the approval of the Trustee (which approval
shall not be unreasonably withheld), it assumes the Trustee’s defense and there




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is no conflict of interest between the Issuer and the Trustee and its agents subject to the
claim in connection with such defense as reasonably determined by the Trustee. The Issuer need not
pay for any settlement made without its written consent. The Issuer need not reimburse any expense
or indemnify against any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.




          When the Trustee incurs expenses or renders services after a Default specified in Section
6.01(5) or Section 6.01(6) occurs, such expenses and the compensation for such services shall be
paid to the extent allowed under any Bankruptcy Law.




          Notwithstanding any other provision in this Indenture, the foregoing provisions of this
Section 7.07 shall survive the satisfaction and discharge of this Indenture or the appointment of a
successor Trustee.




SECTION 7.08. Replacement of Trustee.




          The Trustee may resign with respect to the Securities of one or more Series by so notifying
the Issuer at least thirty (30) days prior to the date of the proposed resignation. The Holders of
a majority in principal amount of the Securities of any Series may remove the Trustee with respect
to that Series by so notifying the Issuer and the Trustee and may appoint a successor Trustee. The
Issuer may remove the Trustee with respect to Securities of one or more Series if:





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




          (2) the Trustee is adjudged a bankrupt or an insolvent;




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




          (4) the Trustee becomes incapable of acting.



          If the Trustee retires, whether by resignation or removal, or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify each Holder of such event and shall
promptly appoint a successor Trustee. Within one (1) year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Immediately after that, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder of each such Series and, if
any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized
Newspaper.




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          If a successor Trustee with respect to the Securities of any one or more Series does not take
office within sixty (60) days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Issuer or the Holders of at least ten percent (10%) in principal amount of the
Securities of the applicable Series may petition any court of competent jurisdiction for the
appointment of a successor Trustee at the expense of the Issuer.




          If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          Notwithstanding the appointment of a successor Trustee pursuant to this Section 7.08, the
Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.




SECTION 7.09. Successor Trustee by Merger, Etc.




          If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee; provided, however, that such corporation
shall be otherwise qualified and eligible under this Article Seven.




SECTION 7.10. Eligibility; Disqualification.




          The Trustee shall at all times satisfy the requirements of Trust Indenture Act §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with Trust Indenture Act § 310(b); provided, however, that there shall be excluded
from the operation of Trust Indenture Act § 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of the Issuer are
outstanding, if the requirements for such exclusion set forth in Trust Indenture Act § 310(b)(1)
are met. The provisions of Trust Indenture Act § 310 shall apply to the Issuer and any other
obligor of the Securities.




SECTION 7.11. Preferential Collection of Claims Against the Issuer.




          The Trustee, in its capacity as Trustee hereunder, shall comply with Trust Indenture Act
§ 311(a), excluding any creditor relationship listed in Trust Indenture Act § 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act § 311(a) to the extent
indicated.




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ARTICLE EIGHT




DISCHARGE OF INDENTURE; DEFEASANCE




SECTION 8.01. Termination of the Issuer’s Obligations.




          Except as otherwise provided in the last paragraph of this Section 8.01, this Indenture will
be discharged and will cease to be of further effect as to a Series of Securities issued hereunder,
when either:




          (a) all such Securities that have been authenticated (except lost, stolen or destroyed
Securities that have been replaced or paid and Securities for whose payment money has been
deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from this trust), have been delivered to the Trustee for cancellation, or





     (b) (1) all such Securities that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a notice of redemption
or otherwise or will become due and payable within one year and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders of such Securities cash in Dollars or U.S. Government Obligations, or
a combination thereof, in amounts sufficient (without reinvestment) to pay and discharge the
entire Indebtedness (including all principal and accrued interest) on such Securities not
theretofore delivered to the Trustee for cancellation to the date of maturity or redemption;




     (2) the Issuer has paid or caused to be paid all other sums payable by the Issuer under
this Indenture; and




     (3) the Issuer has delivered irrevocable instructions to the Trustee for such
Securities under this Indenture to apply the deposited money toward the payment of such
Securities at maturity or on the date of redemption, as the case may be.


In addition, the Issuer must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee for such Securities stating that all conditions precedent to satisfaction and discharge
have been complied with.




          In the case of clause (b) of this Section 8.01, and subject to the next sentence and
notwithstanding the foregoing paragraph, the Issuer’s obligations in Sections 2.06, 2.07, 2.08,
2.09, 4.01, 4.02, 4.03 (as to legal existence of the Issuer only), 7.07, 8.05 and 8.06 shall
survive until such Securities are no longer outstanding pursuant to the last paragraph of Section
2.09. In addition, nothing in this Section 8.01 shall be deemed to discharge the obligations in
Section 7.07, 8.04(a), 8.05 or 8.06, all of which shall survive the satisfaction and discharge of
this Indenture.




          After such delivery or irrevocable deposit, the Trustee upon request by the Issuer shall
acknowledge in writing the discharge of the Issuer’s obligations under such Securities and this
Indenture except for the surviving obligations specified above.




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SECTION 8.02. Legal Defeasance and Covenant Defeasance.




          (a) The Issuer may at any time, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers’ Certificate, elect to have either Section 8.02(b) or 8.02(c)
applied to all outstanding Securities of any Series upon compliance with the conditions set forth
below in this Article Eight.




          (b) Upon the Issuer’s exercise under Section 8.02(a) of the option applicable to this Section
8.02(b), the Issuer will, subject to the satisfaction of the conditions set forth in Section 8.03,
be deemed to have been discharged from its obligations with respect to all outstanding Securities
of such Series on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Issuer will be deemed to have paid
and discharged the entire Indebtedness represented by the outstanding Securities of such Series,
which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.04 and the
other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied
all its or their other obligations under such Securities and this Indenture (and the Trustee for
such Securities, on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:





          (1) the rights of Holders of outstanding Securities of such Series to receive, solely
from the trust fund described in Section 8.04, and as more fully set forth in Section 8.04,
payments in respect of the principal of or interest on, such Securities when such payments
are due;




          (2) the Issuer’s obligations with respect to such Securities under Article Two and
Section 4.02 hereof;




          (3) the rights, powers, trusts, duties and immunities of the Trustee for such
Securities hereunder and the Issuer’s obligations in connection therewith; and




          (4) the provisions of this Article Eight applicable to Legal Defeasance (including
Sections 8.04, 8.05 and 8.06).



          Subject to compliance with this Article Eight, the Issuer may exercise its option under this
Section 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c) hereof.




          (c) Upon the Issuer’s exercise under Section 8.02(a) hereof of the option applicable to this
Section 8.02(c), the Issuer will, subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, be released from its obligations under the covenants specified in a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section
2.02(v), with respect to the outstanding Securities of the applicable Series on and after the date
the conditions set forth in Section 8.03 hereof are satisfied (hereinafter, “Covenant Defeasance”),
and such Securities shall thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders of such Securities (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all
other purposes hereunder (it being understood that such Securities shall not




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be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Securities of such Series, the Issuer may omit to comply with
and shall have no obligation or liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a Default under
Section 6.01, but, except as specified above, the remainder of this Indenture and such Securities
will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.02(a) of the
option applicable to this Section 8.02(c), subject to the satisfaction of the conditions set forth
in Section 8.03, clause (4) of Section 6.01 shall not constitute an Event of Default.




SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.




     In order to exercise either Legal Defeasance under Section 8.02(b) or Covenant Defeasance
under Section 8.02(c) with respect to Securities of any Series:



          (1) the Issuer must irrevocably deposit with the Trustee for such Securities, in trust,
for the benefit of the Holders of such Securities, money or U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient (without reinvestment), in the
opinion of a nationally recognized firm of independent public accountants selected by the
Issuer, to pay the principal of and interest on, and any mandatory sinking fund payments in
respect of, the outstanding Securities of such Series on the stated date for payment thereof
or on the applicable redemption date, as the case may be, and the Issuer must specify
whether such Securities are being defeased to such stated date for payment or to a
particular redemption date;




          (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee for
such Securities an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that:





          (i) the Issuer has received from, or there has been published by, the Internal
Revenue Service, a ruling, or




          (ii) since the date of this Indenture, there has been a change in the
applicable U.S. federal income tax law,




in either case to the effect that, and based thereon, the Holders of the outstanding
Securities of such Series will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;



          (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
for such Securities an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of such Securities will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will
be subject to U.S. federal income tax on the same




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amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;




          (4) no Default with respect to such Securities shall have occurred and be continuing on
the date of such deposit (other than a Default resulting from the borrowing of funds to be
applied to such deposit);




          (5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument to which
the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound (other than any such default resulting solely from the borrowing of
funds to be applied to such deposit and the grant of any Lien on such deposit in favor of
the Trustee and/or the Holders);




          (6) the Issuer shall have delivered to the Trustee for such Securities an Officers’
Certificate stating that the deposit was not made by the Issuer with the intent of
preferring the Holders of such Securities over any other creditors of the Issuer or with the
intent of defeating, hindering, delaying or defrauding any other of its creditors; and




          (7) the Issuer shall have delivered to the Trustee for such Securities an Officers’
Certificate and an Opinion of Counsel, stating, in the case of the Officers’ Certificate,
clauses (1) through (6) of this Section 8.03, as applicable, have been complied with and
stating, in the case of the Opinion of Counsel, that the conditions provided for in clause
(2) or (3), as applicable, and clause (5) of this Section 8.03 have been complied with.



SECTION 8.04. Application of Trust Money.




          (a) The Trustee or Paying Agent shall hold in trust all money and U.S. Government Obligations
(including the proceeds thereof) deposited with it pursuant to this Article Eight in respect of the
outstanding Securities of any Series, and shall apply the deposited money and U.S. Government
Obligations (including any proceeds thereof) in accordance with this Indenture to the payment of
the principal of and the interest on such Securities. The Trustee shall be under no obligation to
invest said money and U.S. Government Obligations (including any proceeds thereof), except as it
may agree with the Issuer.




          (b) The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the money or U.S. Government Obligations (including any proceeds thereof)
deposited pursuant to Section 8.03, or the principal and interest received in respect thereof,
other than any such tax, fee or other charge which by law is for the account of the Holders of the
outstanding Securities of the applicable Series.




          (c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall promptly
deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S.
Government Obligations held by it as provided in Section 8.03 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.





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SECTION 8.05. Repayment to the Issuer.




          Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust
for the payment of the principal of, premium, if any, or interest on, any Series of Securities and
remaining unclaimed for two years after such principal, premium, if any, or interest has become due
and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be
discharged from such trust; and the Holders of such Securities will thereafter be permitted to look
only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Issuer cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than thirty (30) days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Issuer.




SECTION 8.06. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Article Eight or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Issuer’s Obligations under this Indenture and the applicable Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Eight until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with this Article Eight;
provided, however, that if the Issuer has made any payment of interest on, or principal of, any
such Securities following the reinstatement of its obligations, the Issuer shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.




ARTICLE NINE




AMENDMENTS, SUPPLEMENTS AND WAIVERS




SECTION 9.01. Without Consent of Holders.




     Subject to Section 9.02 of this Indenture, the Issuer and the Trustee may amend or supplement
this Indenture or the Securities of one or more Series without the consent of any Holder:




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




          (2) to provide for uncertificated Securities in addition to or in place of certificated
Securities;




          (3) to provide for the assumption of the Issuer’s obligations to the Holders of the
Securities in the case of a merger, consolidation or sale of all or substantially all of the
assets, in accordance with Article Five;



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          (4) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights hereunder of any
Holder;




          (5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




          (6) to provide for the issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by this Indenture; or




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



          Upon the request of the Issuer accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02(b), the Trustee will join with the Issuer in the
execution of any amended or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this Indenture or otherwise.




SECTION 9.02. With Consent of Holders.




          (a) The Issuer and the Trustee may enter into a supplemental indenture hereto with the written
consent of the Holders of at least a majority in aggregate principal amount of the outstanding
Securities of each Series affected by such supplemental indenture (including consents obtained in
connection with a tender offer or exchange offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture hereto or of modifying in any manner the rights
of the Holders of each such Series. Subject to Section 6.07, the Holders of at least a majority in
aggregate principal amount of the outstanding Securities of each Series by notice to the Trustee
(including waivers obtained in connection with a tender offer or exchange offer for the Securities
of such Series) may waive compliance by the Issuer with any provision of this Indenture or the
Securities with respect to such Series without notice to any other Holders.




          (b) Notwithstanding Section 9.02(a), without the consent of each Holder affected, no amendment
or waiver may (with respect to any Securities held by a non-consenting Holder):





          (1) reduce the principal or change the Stated Maturity of any Security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;



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




          (3) reduce the principal amount of Discount Securities payable upon acceleration of the
maturity thereof;




          (4) waive a redemption payment with respect to any Security or change any of the
provisions with respect to the redemption of any Securities, except as specifically set
forth in the Board Resolution, supplemental indenture or Officers’ Certificate delivered
pursuant to Section 2.02;




          (5) make the principal of or interest, if any, on any Security payable in money or
currency other than that stated in the Security;




          (6) waive a Default in the payment of principal of or interest on any Security (except
a rescission of acceleration of the Securities of any Series by the Holders of at least a
majority in principal amount of the outstanding Securities of such Series and a waiver of
the payment Default that resulted from such acceleration);




          (7) change the amount of Securities whose Holders must consent to an amendment,
supplement or waiver; or




          (8) make any change in Section 6.07, this Section 9.02(b), Section 10.14 or Section
10.15.



          (c) It shall not be necessary for the consent of the Holders of Securities under this Section
9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof.




          (d) A consent to any amendment, supplement or waiver under this Indenture by any Holder given
in connection with an exchange (in the case of an exchange offer) or a tender (in the case of a
tender offer) of such Holder’s Securities will not be rendered invalid by such tender or exchange.




          (e) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuer shall mail, or cause to be mailed, to the Holders of Securities affected thereby and, if any
Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized
Newspaper, a notice briefly describing the amendment, supplement or waiver. Any failure of the
Issuer to mail or publish such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment, supplement or waiver.




SECTION 9.03. Compliance with the Trust Indenture Act.




          Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture hereto that complies with the Trust Indenture Act as then in effect.




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SECTION 9.04. Revocation and Effect of Consents.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion
of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security before the date on which the Trustee
receives an Officers’ Certificate certifying that the Holders of the requisite Securities have
consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.




          The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver, which record
date shall be at least thirty (30) days prior to the first solicitation of such consent. If a
record date is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No such consent shall be valid or
effective for more than ninety (90) days after such record date. The Issuer shall inform the
Trustee in writing of the fixed record date if applicable.




          After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (1) through (9) of Section 9.02(b), in which case,
the amendment, supplement or waiver shall bind only each Holder of Securities who has consented to
it and every subsequent Holder of a Securities or portion of Securities that evidences the same
debt as the consenting Holder’s Securities; provided, however, that no such amendment, supplement
or waiver shall impair or affect the right of any Holder to receive payment of principal of, and
interest on, a Security, on or after the respective due dates therefor, or to bring suit for the
enforcement of any such payment on or after such respective dates without the consent of such
Holder.




SECTION 9.05. Notation on or Exchange of Securities.




          If an amendment, supplement or waiver changes the terms of a Security, the Issuer may require
the Holder of the Security to deliver it to the Trustee. The Issuer shall provide the Trustee with
an appropriate notation on the Security about the changed terms and cause the Trustee to return it
to the Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines,
the Issuer in exchange for the Security shall issue, and the Trustee shall authenticate, a new
Security that reflects the changed terms. Failure to make the appropriate notation or issue a new
Security shall not affect the validity and effect of such amendment, supplement or waiver.




SECTION 9.06. Trustee To Sign Amendments, Etc.




          The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this
Article Nine; provided, however, that the Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee’s own rights,


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duties or immunities under this Indenture. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each
stating that the execution of any amendment, supplement or waiver authorized pursuant to this
Article Nine is authorized or permitted by this Indenture and constitutes legal, valid and binding
obligations of the Issuer enforceable in accordance with its terms, subject to customary
exceptions. Such Opinion of Counsel shall be at the expense of the Issuer.




SECTION 9.07. Trustee Protected.




          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures
hereto, except that the Trustee need not sign any supplemental indenture that adversely affects its
rights.




ARTICLE TEN




MISCELLANEOUS




SECTION 10.01. Trust Indenture Act Controls.




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




SECTION 10.02. Notices.




          Any notices or other communications to the Issuer, any Subsidiary of the Issuer, or the
Trustee required or permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by nationally recognized overnight courier service, by facsimile
transmission or registered or certified mail, postage prepaid, return receipt requested, addressed
as follows:



if to the Issuer or any of its Subsidiaries:



Art Technology Group, Inc.

One Main Street

Cambridge, Massachusetts 02142

Attention:    Chief Financial Officer

Telephone:   (617) 386-1000

Facsimile:      •



With a copy to (which copy alone shall not constitute notice):



Art Technology Group, Inc.

One Main Street




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Cambridge, Massachusetts 02142

Attention:     General Counsel

Telephone:      (617) 386-1000

Facsimile:       •



And with a copy to (which copy alone shall not constitute notice):



Foley Hoag LLP

Seaport World Trade Center West

155 Seaport Boulevard

Boston, Massachusetts 02210

Attention:       John D. Patterson, Esq.

Telephone:     (617) 832-1000

Facsimile:       (617) 832-7000



if to the Trustee:




                                        



                                        



                                        



Attention:                                          



Telephone:                                         



Facsimile:                                            




          Each of the Issuer (both for itself and any of its Subsidiaries) and the Trustee by written
notice to each other such Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Issuer, any Subsidiary of the Issuer, and the
Trustee shall be deemed to have been given or made as of the date so delivered if personally
delivered; when replied to; when receipt is acknowledged, if sent by facsimile transmission during
normal business hours of the recipient, or, if not sent during normal business hours of the
recipient, on the Business Day after the day receipt is acknowledged; five (5) calendar days after
mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the addressee); one (1)
Business Day after deposit with a nationally recognized overnight courier service guaranteeing
overnight delivery of such notice or communication.




          Any notice or communication to a Holder required or permitted hereunder shall be mailed to the
Holder at the Holder’s address as it appears on the registration books of the Registrar and, if any
Bearer Securities are outstanding, published in an Authorized Newspaper.




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




          If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.




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SECTION 10.03. Communications by Holders with Other Holders.




          Holders of any Series may communicate pursuant to Trust Indenture Act § 312(b) with other
Holders of that Series or any other Series with respect to their rights under this Indenture or the
Securities of that Series or any other Series. The Issuer, the Trustee, the Registrar and any other
Person shall have the protection of Trust Indenture Act § 312(c).




SECTION 10.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Issuer to the Trustee to take any action under this
Indenture, the Issuer shall furnish to the Trustee, at the request of the Trustee:





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




          (2) an Opinion of Counsel, in form and substance reasonably satisfactory to the
Trustee, stating that, in the opinion of such counsel, all such conditions precedent, if
any, have been complied with.



SECTION 10.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than the Officers’ Certificate required by Section 4.04 or a
certificate provided pursuant to Trust Indenture Act § 314(a)(4)) shall comply with the provisions
of Trust Indenture Act § 314(e) and shall include:





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




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




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




          (4) a statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.



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SECTION 10.06. Rules by Trustee and Agents.




          The Trustee may make reasonable rules for action by or a meeting of Holders of one or more
Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.




SECTION 10.07. Legal Holidays.




          If a payment date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day.




SECTION 10.08. Governing Laws.




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




SECTION 10.09. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan or debt agreement of any
of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.




SECTION 10.10. No Recourse Against Others.




          No director, officer, employee, incorporator, stockholder, member or manager of the Issuer or
any Subsidiary shall have any liability for any obligations of the Issuer or any Subsidiary under
the Securities of any Series or this Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation, and no Officer shall have any personal liability for
any Officers’ Certificate signed by such Officer or any inaccuracy therein. Each Holder of
Securities of any Series by accepting such Securities waives and releases all such liability. Such
waiver and release shall be part of the consideration for issuance of such Securities.




SECTION 10.11. Successors.




          All agreements of the Issuer or any Subsidiary in this Indenture and the Securities shall bind
their respective successors. All agreements of the Trustee in this Indenture shall bind its
successor.




SECTION 10.12. Duplicate Originals.




          All parties may sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent the same agreement.




SECTION 10.13. Severability.




          To the extent permitted by applicable law, in case any one or more of the provisions in this
Indenture or in the Securities shall be held invalid, illegal or unenforceable, in


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 any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be affected or impaired
thereby, it being intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.




SECTION 10.14. Securities in a Foreign Currency or in ECU.




          Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.02 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such Series which shall be deemed to
be outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
10.14, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City, New York for
cable transfers of that currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, “Market Exchange Rate” shall mean the rate of exchange determined by
the Commission of the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication, the “Journal”). If
such Market Exchange Rate is not available for any reason with respect to such currency, the
Trustee shall use, in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the
Journal, as of the most recent available date, or quotations or, in the case of ECUs, rates of
exchange from one or more major banks in The City of New York, New York or in the country of issue
of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations or, in
the case of ECUs, rates of exchange as the Trustee, upon consultation with the Issuer, shall deem
appropriate. The provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.




          All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Issuer and all Holders.




SECTION 10.15. Judgment Currency.




          The Issuer agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York, New York the Required Currency with
the Judgment Currency on the day on which final unappealable


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 judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York, New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not
entered in accordance with the preceding clause (a) of this Section 10.15), in any currency other
than the Required Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be
payable, and (iii) shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a
Saturday, Sunday or a legal holiday in The City of New York, New York on which banking institutions
are authorized or required by law, regulation or executive order to close.




ARTICLE ELEVEN




SINKING FUNDS




SECTION 11.01. Applicability of Article.




          The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.




          The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a “mandatory sinking fund payment” and any other amount
provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section 11.02. Each sinking
fund payment shall be applied to the redemption of Securities of any Series as provided for by the
terms of the Securities of such Series.




SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities.




          The Issuer may, in satisfaction of all or any part of any sinking fund payment with respect to
the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as
credit Securities of such Series to which such sinking fund payment is applicable and which have
been repurchased by the Issuer or redeemed either at the election of the Issuer pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have


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not been previously so credited. Such Securities shall be received by the Trustee, together
with an Officers’ Certificate with respect thereto, not later than fifteen (15) days prior to the
date on which the Trustee begins the process of selecting Securities for redemption, and shall be
credited for such purpose by the Trustee at the price specified in such 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 Securities in lieu of cash payments
pursuant to this Section 11.02, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such Series for redemption, except upon receipt of an Issuer Order that such action
be taken, 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
shall from time to time upon receipt of an Issuer Order pay over and deliver to the Issuer any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the Issuer to the
Trustee of Securities of that Series purchased by the Issuer having an unpaid principal amount
equal to the cash payment required to be released to the Issuer.




SECTION 11.03. Redemption of Securities for Sinking Fund.




          Not less than forty-five (45) days (unless otherwise indicated in the Board Resolution,
supplemental indenture or Officers’ Certificate in respect of a particular Series of Securities)
prior to each sinking fund payment date for any Series of Securities, the Issuer will deliver to
the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory 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 and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.02, and
the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and the Issuer shall thereupon be obligated to pay the amount therein specified.




          Not less than thirty (30) days (unless otherwise indicated in the Board Resolution,
supplemental indenture or Officers’ Certificate in respect of a particular Series of Securities)
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Issuer in the manner
provided in Section 3.03. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 3.04, 3.05 and 3.06.




     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.




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	 	ART TECHNOLOGY GROUP, INC.,

      as Issuer

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 



	 	 	 	, 	 
	 

	 	 


 
 
 
as Trustee	 	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 




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