Exhibit 4.2


 


HAWAIIAN
HOLDINGS, INC.


 


TO


 






 


AS
TRUSTEE


 


INDENTURE


 


DATED
AS OF
                    ,
20


 


 


SUBORDINATED
DEBT SECURITIES


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF
  GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Compliance Certificates and
  Opinions

  	
  9

  
	
  Section 1.3

  	
  Form of Documents Delivered to
  Trustee

  	
  10

  
	
  Section 1.4

  	
  Acts of Holders; Record Dates

  	
  10

  
	
  Section 1.5

  	
  Notices, etc., to Trustee and
  Company

  	
  12

  
	
  Section 1.6

  	
  Notice to Holders; Waiver

  	
  12

  
	
  Section 1.7

  	
  Conflict with Trust Indenture Act

  	
  12

  
	
  Section 1.8

  	
  Effect of Headings and Table of
  Contents

  	
  13

  
	
  Section 1.9

  	
  Successors and Assigns

  	
  13

  
	
  Section 1.10

  	
  Separability Clause

  	
  13

  
	
  Section 1.11

  	
  Benefits of Indenture

  	
  13

  
	
  Section 1.12

  	
  Governing Law

  	
  13

  
	
  Section 1.13

  	
  Legal Holidays

  	
  13

  
	
  Section 1.14

  	
  Indenture and Securities Solely
  Corporate Obligations

  	
  13

  
	
  Section 1.15

  	
  Indenture May be Executed in
  Counterparts

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 SECURITY FORMS

  	
  14

  
	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  14

  
	
  Section 2.2

  	
  Form of Face of Security

  	
  14

  
	
  Section 2.3

  	
  Form of Reverse of Security

  	
  16

  
	
  Section 2.4

  	
  Form of Legend for Global
  Securities

  	
  19

  
	
  Section 2.5

  	
  Form of Trustee’s Certificate
  of Authentication

  	
  19

  
	
  Section 2.6

  	
  Form of Conversion Notice

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 THE SECURITIES

  	
  21

  
	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable in
  Series

  	
  21

  
	
  Section 3.2

  	
  Denominations

  	
  24

  
	
  Section 3.3

  	
  Execution, Authentication, Delivery
  and Dating

  	
  24

  
	
  Section 3.4

  	
  Temporary Securities

  	
  25

  
	
  Section 3.5

  	
  Registration; Registration of
  Transfer and Exchange

  	
  26

  
	
  Section 3.6

  	
  Mutilated, Destroyed, Lost and
  Stolen Securities

  	
  27

  
	
  Section 3.7

  	
  Payment of Interest; Interest
  Rights Preserved

  	
  28

  
	
  Section 3.8

  	
  Persons Deemed Owners

  	
  29

  
	
  Section 3.9

  	
  Cancellation

  	
  29

  
	
  Section 3.10

  	
  Computation of Interest

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 SATISFACTION AND DISCHARGE

  	
  29

  
	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction and Discharge of
  Indenture

  	
  29

  
	
  Section 4.2

  	
  Application of Trust Money

  	
  30

  



 

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 REMEDIES

  	
  31

  
	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
  31

  
	
  Section 5.2

  	
  Acceleration of Maturity;
  Rescission and Annulment

  	
  32

  
	
  Section 5.3

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
  33

  
	
  Section 5.4

  	
  Trustee May File Proofs of
  Claim

  	
  34

  
	
  Section 5.5

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  34

  
	
  Section 5.6

  	
  Application of Money Collected

  	
  34

  
	
  Section 5.7

  	
  Limitation on Suits

  	
  35

  
	
  Section 5.8

  	
  Unconditional Right of Holders to
  Receive Principal, Premium and Interest and to Convert

  	
  35

  
	
  Section 5.9

  	
  Restoration of Rights and Remedies

  	
  35

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  36

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  36

  
	
  Section 5.12

  	
  Control by Holders

  	
  36

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  36

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  37

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or Extension
  Laws

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 THE TRUSTEE

  	
  37

  
	
   

  	
   

  
	
  Section 6.1

  	
  Certain Duties and Responsibilities

  	
  37

  
	
  Section 6.2

  	
  Notice of Defaults

  	
  38

  
	
  Section 6.3

  	
  Certain Rights of Trustee

  	
  38

  
	
  Section 6.4

  	
  Not Responsible for Recitals or
  Issuance of Securities

  	
  39

  
	
  Section 6.5

  	
  May Hold Securities and Act as
  Trustee under Other Indentures

  	
  39

  
	
  Section 6.6

  	
  Money Held in Trust

  	
  39

  
	
  Section 6.7

  	
  Compensation and Reimbursement

  	
  39

  
	
  Section 6.8

  	
  Conflicting Interests

  	
  40

  
	
  Section 6.9

  	
  Corporate Trustee Required;
  Eligibility

  	
  40

  
	
  Section 6.10

  	
  Resignation and Removal; Appointment
  of Successor

  	
  40

  
	
  Section 6.11

  	
  Acceptance of Appointment by
  Successor

  	
  42

  
	
  Section 6.12

  	
  Merger, Conversion, Consolidation
  or Succession to Business

  	
  43

  
	
  Section 6.13

  	
  Preferential Collection of Claims
  Against Company

  	
  43

  
	
  Section 6.14

  	
  Appointment of Authenticating Agent

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE
  AND COMPANY

  	
  44

  
	
   

  	
   

  
	
  Section 7.1

  	
  Company to Furnish Trustee Names
  and Addresses of Holders

  	
  44

  
	
  Section 7.2

  	
  Preservation of Information;
  Communications to Holders

  	
  45

  
	
  Section 7.3

  	
  Reports by Trustee

  	
  45

  
	
  Section 7.4

  	
  Reports by Company

  	
  45

  



 


ii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  46

  
	
   

  	
   

  
	
  Section 8.1

  	
  Company May Consolidate, etc.,
  Only on Certain Terms.

  	
  46

  
	
  Section 8.2

  	
  Successor Substituted

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 SUPPLEMENTAL INDENTURES

  	
  47

  
	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures Without
  Consent of Holders

  	
  47

  
	
  Section 9.2

  	
  Supplemental Indentures with
  Consent of Holders

  	
  48

  
	
  Section 9.3

  	
  Execution of Supplemental
  Indentures

  	
  49

  
	
  Section 9.4

  	
  Effect of Supplemental Indentures

  	
  49

  
	
  Section 9.5

  	
  Conformity with Trust Indenture Act

  	
  49

  
	
  Section 9.6

  	
  Reference in Securities to
  Supplemental Indentures

  	
  49

  
	
  Section 9.7

  	
  Subordination Unimpaired

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 COVENANTS

  	
  50

  
	
   

  	
   

  
	
  Section 10.1

  	
  Payment of Principal, Premium and
  Interest

  	
  50

  
	
  Section 10.2

  	
  Maintenance of Office or Agency

  	
  50

  
	
  Section 10.3

  	
  Money for Securities Payments to be
  Held in Trust

  	
  50

  
	
  Section 10.4

  	
  Statement by Officers as to Default

  	
  51

  
	
  Section 10.5

  	
  Existence

  	
  51

  
	
  Section 10.6

  	
  Maintenance of Properties

  	
  52

  
	
  Section 10.7

  	
  Payment of Taxes and Other Claims

  	
  52

  
	
  Section 10.8

  	
  Waiver of Certain Covenants

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 REDEMPTION OF SECURITIES

  	
  52

  
	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of Article

  	
  52

  
	
  Section 11.2

  	
  Election to Redeem; Notice to
  Trustee

  	
  53

  
	
  Section 11.3

  	
  Selection by Trustee of Securities
  to Be Redeemed

  	
  53

  
	
  Section 11.4

  	
  Notice of Redemption

  	
  54

  
	
  Section 11.5

  	
  Deposit of Redemption Price

  	
  54

  
	
  Section 11.6

  	
  Securities Payable on Redemption Date

  	
  55

  
	
  Section 11.7

  	
  Securities Redeemed in Part

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 SINKING FUNDS

  	
  55

  
	
   

  	
   

  
	
  Section 12.1

  	
  Applicability of Article

  	
  55

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund
  Payments with Securities

  	
  56

  
	
  Section 12.3

  	
  Redemption of Securities for
  Sinking Fund

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE

  	
  56

  
	
   

  	
   

  
	
  Section 13.1

  	
  Company’s Option to Effect
  Defeasance or Covenant Defeasance

  	
  56

  
	
  Section 13.2

  	
  Defeasance and Discharge

  	
  56

  
	
  Section 13.3

  	
  Covenant Defeasance

  	
  57

  



 


iii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 13.4

  	
  Conditions to Defeasance or
  Covenant Defeasance

  	
  58

  
	
  Section 13.5

  	
  Deposited Money, U.S. Government
  Obligations and Foreign Government Obligations to be Held in Trust;
  Miscellaneous Provisions

  	
  60

  
	
  Section 13.6

  	
  Reinstatement

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 CONVERSION OF SECURITIES

  	
  61

  
	
   

  	
   

  
	
  Section 14.1

  	
  Applicability of Article

  	
  61

  
	
  Section 14.2

  	
  Exercise of Conversion Privilege

  	
  61

  
	
  Section 14.3

  	
  No Fractional Shares

  	
  62

  
	
  Section 14.4

  	
  Adjustment of Conversion Price or
  Conversion Rate

  	
  62

  
	
  Section 14.5

  	
  Notice of Certain Corporate Actions

  	
  63

  
	
  Section 14.6

  	
  Reservation of Shares of Common
  Stock

  	
  63

  
	
  Section 14.7

  	
  Payment of Certain Taxes upon
  Conversion

  	
  64

  
	
  Section 14.8

  	
  Nonassessability

  	
  64

  
	
  Section 14.9

  	
  Provision in Case of Consolidation,
  Merger or Sale of Assets

  	
  64

  
	
  Section 14.10

  	
  Duties of Trustee Regarding
  Conversion

  	
  65

  
	
  Section 14.11

  	
  Repayment of Certain Funds upon
  Conversion

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 SUBORDINATION OF SECURITIES

  	
  65

  
	
   

  	
   

  
	
  Section 15.1

  	
  Agreement of Subordination

  	
  65

  
	
  Section 15.2

  	
  Payments to Holders

  	
  66

  
	
  Section 15.3

  	
  Subrogation of Securities

  	
  68

  
	
  Section 15.4

  	
  Authorization to Effect
  Subordination

  	
  69

  
	
  Section 15.5

  	
  Notice to Trustee

  	
  69

  
	
  Section 15.6

  	
  Trustee’s Relation to Senior Debt

  	
  70

  
	
  Section 15.7

  	
  No Impairment of Subordination

  	
  70

  
	
  Section 15.8

  	
  Certain Conversions/Exchanges
  Deemed Payment

  	
  70

  
	
  Section 15.9

  	
  Article Applicable to Paying
  Agents

  	
  71

  
	
  Section 15.10

  	
  Senior Debt Entitled to Rely

  	
  71

  
	
  Section 15.11

  	
  Reliance on Judicial Order or
  Certificate of Liquidating Agent

  	
  71

  
	
  Section 15.12

  	
  Trust Monies Not Subordinated.

  	
  71

  



 


iv

















 


Hawaiian
Holdings, Inc.


 


Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the Trust Indenture Act of 1939:


 


	
  Section 310

  	
   

  	
  (a)(1)

  	
   

  	
  6.9

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  6.9

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.8, 6.10

  
	
  Section 311

  	
   

  	
  (a)

  	
   

  	
  6.13

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.13

  
	
  Section 312

  	
   

  	
  (a)

  	
   

  	
  7.1, 7.2

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.2

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.2

  
	
  Section 313

  	
   

  	
  (a)

  	
   

  	
  7.3

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.3

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.3

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.3

  
	
  Section 314

  	
   

  	
  (a)

  	
   

  	
  7.4

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  1.1, 10.4

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  1.2

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  1.2

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (e)

  	
   

  	
  1.2

  
	
  Section 315

  	
   

  	
  (a)

  	
   

  	
  6.1

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.2

  
	
   

  	
   

  	
  (c)

  	
   

  	
  6.1

  
	
   

  	
   

  	
  (d)

  	
   

  	
  6.1

  
	
   

  	
   

  	
  (e)

  	
   

  	
  5.14

  
	
  Section 316

  	
   

  	
  (a)

  	
   

  	
  1.1

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  5.2, 5.12

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.8

  
	
   

  	
   

  	
  (c)

  	
   

  	
  1.4

  
	
  Section 317

  	
   

  	
  (a)(1)

  	
   

  	
  5.3

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  5.4

  
	
   

  	
   

  	
  (b)

  	
   

  	
  10.3

  
	
  Section 318

  	
   

  	
  (a)

  	
   

  	
  1.7

  



 


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


 

















 


INDENTURE,
dated as of
                    ,
20    , between Hawaiian Holdings, Inc., a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the “Company”), having its principal executive office at 3375 Koapaka
Street, Suite G-350, Honolulu, Hawaii, and
                        ,
as Trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


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


 


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


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE 1


 


DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION


 


Section 1.1            Definitions.


 


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


 


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


 


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


 


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


 


(4)           all references to “$” refer
to the lawful currency of the United States of America;


 


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


 

















 


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


 


“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.4.


 


“Additional
Interest” has the meaning specified in Section 5.2(b).


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.


 


“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section 6.14
to act on behalf of the Trustee to authenticate Securities of one or more
series.


 


“Board
of Directors” means either the board of directors of the Company or any duly
authorized committee of that board empowered to act for it with respect to this
Indenture.


 


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


 


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


 


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


 


“Common
Stock” includes any stock of any class of the Company which has no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company; provided, however,
subject to the provisions of Section 14.9, shares issuable upon conversion
of Securities shall include only shares of the class designated as Common Stock
of the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided, further,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.


 


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


 


“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by its Chairman of the Board, its Vice Chairman of the Board,
its Chief Executive Officer, its President or a Vice President, and by its
principal financial officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.


 


2

















 


“Constituent
Person” has the meaning specified in Section 14.9.


 


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


 


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


 


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


 


“Covenant
Defeasance” has the meaning specified in Section 13.3.


 


“Defaulted
Interest” has the meaning specified in Section 3.7.


 


“Defeasance”
has the meaning specified in Section 13.2.


 


“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as
contemplated by Section 3.1.


 


“Designated
Senior Debt” means the Company’s obligations under any particular Senior Debt
in which the instrument creating or evidencing the same or the assumption or
guarantee thereof (or related agreements or documents to which the Company is a
party) expressly provides that such Senior Debt shall be “Designated Senior
Debt” for purposes of this Indenture (provided,  that
such instrument, agreement or other document may place limitations and
conditions on the right of such Senior Debt to exercise the rights of
Designated Senior Debt).  If any payment
made to any holder of any Designated Senior Debt or its Representative with
respect to such Designated Senior Debt is rescinded or must otherwise be
returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the reinstated Indebtedness of the
Company arising as a result of such rescission or return shall constitute
Designated Senior Debt effective as of the date of such rescission or return.


 


“euro”
or “euros” means the currency adopted by those nations participating in the
third stage of the economic and monetary union provisions of the Treaty on
European Union, signed at Maastricht on February 7, 1992.


 


“European
Economic Area” means the member nations of the European Economic Area pursuant
to the Oporto Agreement on the European Economic Area dated May 2, 1992,
as amended.


 


“European
Union” means the member nations of the European Union established by the Treaty
of European Union, signed at Maastricht on February 7, 1992, which amended
the Treaty of Rome establishing the European Community.


 


“Event
of Default” has the meaning specified in Section 5.1.


 


3














 


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


 


“Expiration
Date” has the meaning specified in Section 1.4.


 


“Foreign
Government Obligation” means with respect to Securities of any series which are
not denominated in the currency of the United States of America (x) any
security which is (i) a direct obligation of the government which issued
or caused to be issued the currency in which such security is denominated and
for the payment of which obligations its full faith and credit is pledged or,
with respect to Securities of any series which are denominated in euros, a
direct obligation of any member nation of the European Union for the payment of
which obligation the full faith and credit of the respective nation is pledged
so long as such nation has a credit rating at least equal to that of the
highest rated member nation of the European Economic Area, or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of a government specified in clause (i) above the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the such government, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any Foreign Government
Obligation which is specified in clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any Foreign Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Foreign Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.


 


“Global
Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.4 (or such legend as
may be specified as contemplated by Section 3.1 for such Securities).


 


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


 


“Indebtedness”
means, with respect to any Person, and without duplication, whether absolute or
contingent, secured or unsecured, due or to become due, (a) all
indebtedness, obligations and other liabilities (contingent or otherwise) of
such Person evidenced by a credit or loan agreement, note, bond, debenture, or
other written obligation (whether or not the recourse of the lender is to the
whole of the assets of such person or to only a portion thereof) or for money
borrowed (including obligations of such Person in respect of overdrafts,
foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments); (b) all obligations and
liabilities (contingent or otherwise) of such Person evidenced by a note or
similar instrument given in connection with the acquisition of any businesses,
properties or assets of any kind; (c) all obligations and liabilities
(contingent or otherwise) in respect of leases of such Person required, in
conformity with generally accepted accounting principles, to be accounted for
as capitalized lease obligations on the balance sheet of such Person and all
obligations and other liabilities (contingent or otherwise) or as lessee under
any leases or related documents for facilities, capital equipment or related
assets, whether or not capitalized, entered into or leased for financing
purposes; (d) all obligations of such Person (contingent or otherwise)
with respect to interest rate and currency swaps, caps, floors, collars, hedge
agreements, forward contracts or similar agreements or arrangements; (e) all
obligations and other liabilities (contingent or otherwise) of such Person with
respect to letters of credit, bankers’ acceptances or similar facilities,
including reimbursement obligations with respect to the foregoing; (f) all
obligations and liabilities of such Person or assumed as the 


 


4

















 


deferred purchase price of property or services, but
excluding trade accounts payable and accrued liabilities arising in the
ordinary course of business; (g) all obligations of the type referred to
in (a) through (f) above of another Person the payment of which, in
either case, such Person has assumed or guaranteed or for which such Person is
responsible or liable directly or indirectly, jointly or severally, as obligor,
guarantor or otherwise, or which are secured by a lien on such Person’s
property; and (h) any and all renewals, extensions, modifications,
replacements, restatements and refundings of, or, any indebtedness or
obligation issued in exchange for, any such indebtedness or obligation of the
kind described in clauses (a) through (g) above.


 


“Indenture”
means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.  The term “Indenture” shall also include the
terms of particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is
acting as Trustee under this Indenture due to the appointment of one or more
separate Trustees for any one or more separate series of Securities, “Indenture”
shall mean, with respect to such series of Securities for which any such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 3.1, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee, but to which such person, as such Trustee, was not a
party; provided, further that in the event that this Indenture is
supplemented or amended by one or more indentures supplemental hereto which are
only applicable to certain series of Securities, the term “Indenture” for a
particular series of Securities shall only include the supplemental indentures
applicable thereto.


 


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


 


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


 


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


 


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


 


“Non-electing
Share” has the meaning specified in Section 14.9.


 


“Non-Payment
Default” has the meaning specified in Section 15.2.


 


“Notice
of Default” means a written notice of the kind specified in Section 5.1(4).


 


5

















 


“Officers’
Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the principal financial officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.  One of the
officers signing an Officers’ Certificate given pursuant to Section 10.4
shall be the principal executive, financial or accounting officer of the
Company.


 


“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Company, and who shall be reasonably acceptable to the
Trustee.


 


“Original
Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.


 


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


 


(1)           Securities theretofore
canceled by the Trustee or delivered to the Trustee for cancellation;


 


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


 


(3)           Securities as to which
Defeasance has been effected pursuant to Section 13.2; and


 


(4)           Securities which have been
paid pursuant to Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;


 


provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 5.2,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 3.1, (C) the
principal amount of a Security denominated in one or more non-U.S. dollar
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 3.1, of the principal amount of such Security
(or, in the case of a Security described in clause (A) or (B) above,
of the amount determined as provided in such clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the 


 


6

















 


Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded.  Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.


 


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


 


“Payment
Blockage Notice” has the meaning specified in Section 15.2.


 


“Payment
Default” has the meaning specified in Section 15.2.


 


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


 


“Place
of Payment,” when used with respect to the Securities of any series, means the
place or places where the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by Section 3.1.


 


“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Record
Date” means any Regular Record Date or Special Record Date.


 


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


 


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


 


“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 3.1.


 


“Reporting
Default” has the meaning specified in Section 5.2(b).


 


“Representative”
means the (a) indenture trustee or other trustee, agent or representative
for any Senior Debt or (b) with respect to any Senior Debt that does not
have any such trustee, agent or other representative, (i) in the case of
such Senior Debt issued pursuant to an agreement providing for voting
arrangements as among the holders or owners of such Senior Debt, any holder or
owner of such Senior Debt acting with the consent of the required persons
necessary to bind such holders or owners of such Senior Debt and (ii) in
the case of all other such Senior Debt, the holder or owner of such Senior
Debt.


 


“Responsible
Officer” means, when used with respect to the Trustee, an officer of the
Trustee in the Corporate Trust Office assigned and duly authorized by the
Trustee to administer its corporate trust matters.


 


7

















 


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


 


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


 


“Security
Register” and “Security Registrar” have the respective meanings specified in Section 3.5.


 


“Senior
Debt” means the principal of, premium, if any, interest (including all interest
accruing subsequent to the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowable as a
claim in any such proceeding) and rent payable on or in connection with, and
all fees, costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Company, whether outstanding on the date of this
Indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company (including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing),
unless in the case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such Indebtedness shall not be senior in right of payment to the
Securities or expressly provides that such Indebtedness is “pari  passu” or “
junior” to the Securities. 
Notwithstanding the foregoing, the term Senior Debt shall not include
any Indebtedness of the Company to any Subsidiary of the Company.  If any payment made to any holder of any
Senior Debt or its Representative with respect to such Senior Debt is rescinded
or must otherwise be returned by such holder or Representative upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, the
reinstated Indebtedness of the Company arising as a result of such rescission
or return shall constitute Senior Debt effective as of the date of such
rescission or return.


 


“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 3.7.


 


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


 


“Subsidiary”
means a Person of which at least a majority of the outstanding voting stock
having the power to elect a majority of the board of directors of such Person
(in the case of a corporation) is, or of which at least a majority of the
equity interests (in the case of a Person which is not a corporation) are, at
the time owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting
stock” means stock or similar interests to the Company which ordinarily has or
have voting power for the election of directors or persons performing similar
functions, whether at all times or only so long as no senior class of stock or
other interests has or have such voting power by reason of any contingency.


 


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


 


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


 


8

















 


“U.S.
Government Obligation” means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable
or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any U.S. Government Obligation which is
specified in clause (x) above and held by such bank for the account
of the holder of such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government Obligation which is
so specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.


 


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


 


Section 1.2            Compliance
Certificates and Opinions.


 


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


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include,


 


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


 


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


 


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


 


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


 


9

















 


Section 1.3            Form of
Documents Delivered to Trustee.


 


In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


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


 


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


 


Section 1.4            Acts of
Holders; Record Dates.


 


Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.  The Trustee shall promptly deliver to the
Company copies of all such instrument or instruments delivered to the
Trustee.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


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


 


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


 


Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon 


 


10

















 


the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.


 


The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give, make or take
any request, demand, authorization, direction, vote, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may
not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. 
Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.


 


The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(2) or (iv) any
direction referred to in Section 5.12, in each case with respect to
Securities of such series.  If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities
of such series on such record date, and no other Holders, shall be entitled to
join in such notice, declaration, request or direction, whether or not such
Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. 
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.6.


 


With
respect to any record date set pursuant to this Section, the party hereto which
sets such record dates may designate any day as the “Expiration Date” and from
time to time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such 


 


11

















 


record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph.  Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.


 


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


 


Section 1.5            Notices,
etc., to Trustee and Company.


 


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


 


(1)           the Trustee by any Holder or
by the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (or by facsimile transmissions, provided
that oral confirmation of receipt shall have been received) to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust Department,
or


 


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


 


Section 1.6            Notice
to Holders; Waiver.


 


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


 


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


 


Section 1.7            Conflict
with Trust Indenture Act.


 


If
any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under the Trust Indenture Act to be a part
of and govern this Indenture, the latter provision shall 


 


12

















 


control.  If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act, which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.


 


Section 1.8            Effect
of Headings and Table of Contents.


 


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


 


Section 1.9            Successors
and Assigns.


 


All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.


 


Section 1.10         Separability Clause.


 


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


 


Section 1.11         Benefits of Indenture.


 


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


 


Section 1.12         Governing Law.


 


THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 1.13         Legal Holidays.


 


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


 


Section 1.14         Indenture and Securities Solely
Corporate Obligations.


 


No
recourse for the payment of the principal of or premium, if any, or interest on
any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in this Indenture or in any supplemental indenture or in any Security, 


 


13

















 


or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
employee, agent, officer, or director or subsidiary, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.


 


Section 1.15         Indenture May be Executed in
Counterparts.


 


This
instrument may be executed in any number of counterparts, each of which shall
be an original, but such counterparts shall together constitute but one and the
same instrument.


 


ARTICLE 2


 


SECURITY FORMS


 


Section 2.1            Forms
Generally.


 


The
Securities of each series shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution
thereof.  If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.3
for the authentication and delivery of such Securities.  Any such Board Resolution or record of such
action shall have attached thereto a true and correct copy of the form of
Security referred to therein approved by or pursuant to such Board Resolution.


 


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


 


Section 2.2            Form of
Face of Security.


 


[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]


 


HAWAIIAN
HOLDINGS, INC.


 


	
  NO.                     

  	
  $                       

  
	
   

  	
   

  
	
   

  	
  CUSIP:                        

  
	
   

  	
   

  



 


14














 


Hawaiian
Holdings, Inc., a corporation duly organized and existing under the laws
of Delaware (herein called the “Company,” which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
                                                              ,
or registered assigns, the principal sum of
                                                                                
dollars on
                        
[if the Security is to bear interest prior to
Maturity, insert — , and to pay interest thereon from
                  
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on
                      
and
                    
in each year,


 


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


 


[If the Security is not to
bear interest prior to Maturity, insert — The principal of this
Security shall not bear interest except in the case of a default in payment of
principal upon acceleration, upon redemption or at Stated Maturity and in such
case the overdue principal and any overdue premium shall bear interest at the
rate of       % per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment.  Interest on any overdue principal or premium
shall be payable on demand.  Any such
interest on overdue principal or premium which is not paid on demand shall bear
interest at the rate of       % per annum (to the
extent that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so demanded is paid
or made available for payment.  Interest
on any overdue interest shall be payable on demand.]  Payment of the principal of (and premium, if
any) and [if applicable, insert — any such]
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in
                                          ,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable, insert —; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].


 


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


 


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


 


15

















 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


	
  Dated:

  	
   

  	
   

  	
  HAWAIIAN HOLDINGS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


Section 2.3            Form of
Reverse of Security.


 


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


 


[If applicable, insert —
The Securities of this series are subject to redemption upon not less than [if applicable, insert — 30] days’ notice by mail, [if applicable, insert — (1) on
                          
in any year commencing with the year
           and ending with
the year            through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [if
applicable, insert — on or after
                          ,
20    ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert —
on or before
                            ,
      %, and if redeemed] during the 12-month
period beginning                 
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


[If applicable, insert —The
Securities of this series are subject to redemption upon not less than [if applicable, insert — 30] days’ notice by mail, (1) on
                  
in any year commencing with the year
           and ending with
the year            through
operation of the sinking fund for this series at the Redemption 


 


16

















 


Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [if applicable, insert —
on or after
                    ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below:  If redeemed during the 12-month period
beginning
                
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price For 

  Redemption Through 

  Operation of the Sinking Fund

  	
   

  	
  Redemption Price For
  Redemption

  Otherwise Than Through 

  Operation of the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


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


 


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


 


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


 


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


 


[If the Security is convertible into other securities of the Company,
specify the conversion features.]


 


The
indebtedness evidenced by this Security is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt of the Company, and this Security is
issued subject to such provisions of the Indenture with respect thereto.  Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, 


 


17

















 


(b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.


 


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


 


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


 


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


 


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


 


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


 


18

















 


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


 


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


 


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


 


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


 


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


 


Section 2.4            Form of
Legend for Global Securities.


 


Unless
otherwise specified as contemplated by Section 3.1 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:


 


THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF.  THIS SECURITY MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


Section 2.5            Form of
Trustee’s Certificate of Authentication.


 


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


 


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


 


	
   

  	
                                ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
	
   

  	
   

  
	
   

  	
   

  



 


19

















 


Section 2.6            Form of
Conversion Notice.


 


Conversion notices shall be
in substantially the following form:


To
Hawaiian Holdings, Inc.:


 


The
undersigned owner of this Security hereby irrevocably exercises the option to
convert this Security, or portion hereof (which is $1,000 or an integral
multiple thereof) below designated, into shares of Common Stock of the Company
in accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below.  If this Notice is being delivered on a date
after the close of business on a Regular Record Date and prior to the opening
of business on the related Interest Payment Date (unless this Security or the
portion thereof being converted has been called for redemption on a Redemption
Date during the period beginning at the close of business on a Regular Record
Date and ending at the opening of business on the first Business Day after the
next succeeding Interest Payment Date, or if such Interest Payment Date is not
a Business Day, the second such Business Day), this Notice is accompanied by
payment, in funds acceptable to the Company, of an amount equal to the interest
payable on such Interest Payment Date of the principal of this Security to be
converted.  If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect hereto. 
Any amount required to be paid by the undersigned on account of interest
accompanies this Security.


 


Principal Amount to be Converted

(in an integral multiple of $1,000, if less than all):


U.S.
$                          .


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must be
  guaranteed by an eligible guarantor institution (banks, stockbrokers, savings
  and loan associations and credit unions with membership in an approved
  signature guarantee medallion program) pursuant to Securities and Exchange
  Commission Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guaranty

  



 


Fill
in for registration of shares of Common Stock and Security if to be issued
otherwise than to the registered Holder.


 


	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Social Security or Other
  Taxpayer

  
	
   

  	
   

  	
  Identification Number

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Please print Name and
  Address

  	
   

  	
   

  
	
  (including zip code)

  	
   

  	
   

  



 


[The above conversion notice is to be modified, as
appropriate, for conversion into other securities or property of the Company.]


 


20

















 


ARTICLE 3


 


THE SECURITIES


 


Section 3.1            Amount
Unlimited; 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.  There shall be established in or pursuant to
a Board Resolution and, subject to Section 3.3, set forth, or determined
in the manner provided, in an Officers’ Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series,


 


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


 


(2)           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 3.4, 3.5, 3.6, 9.6 or
11.7 and except for any Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered hereunder);


 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


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


 


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


 


(11)         if other than the currency
of the United States of America, the currency, currencies or currency units in
which the principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 1.1;


 


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


 


(13)         if other than the entire
principal amount thereof, the portion of the principal amount of any Securities
of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;


 


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


 


(15)         if applicable, that the
Securities of the series, in whole or any specified part, shall be defeasible
pursuant to Section 13.2 or Section 13.3 or both such Sections, or
any other defeasance provisions applicable to any Securities of the series,
and, if other than by a Board Resolution, the manner in which any election by
the Company to defease such Securities shall be evidenced;


 


22

















 


(16)         if applicable, the terms of
any right to convert or exchange Securities of the series into shares of Common
Stock of the Company or other securities or property;


 


(17)         if applicable, that any
Securities of the series shall be issuable in whole or in part in the form of
one or more Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth
in Section 2.4 and any circumstances in addition to or in lieu of those
set forth in clause (2) of the last paragraph of Section 3.5 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;


 


(18)         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 5.2;


 


(19)         any addition to or change in
the covenants set forth in Article 10 which applies to Securities of the
series;


 


(20)         any Authenticating Agents,
Paying Agents, Security Registrars or such other agents necessary in connection
with the issuance of the Securities of such series, including, without
limitation, exchange rate agents and calculation agents;


 


(21)         if applicable, the terms of
any security that will be provided for a series of Securities, including
provisions regarding the circumstances under which collateral may be released
or substituted;


 


(22)         if applicable, the terms of
any guaranties for the Securities and any circumstances under which there may
be additional obligors on the Securities;


 


(23)         any addition to or change in
or modification to the subordinated provisions of this Indenture relating to
the Securities of that series (including the provisions of Article 15), or
different subordination provisions, including a different definition of “Senior
Debt” or “Designated Senior Debt,” will apply to Securities of the series; and


 


(24)         any other terms of the
series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.1(5)).


 


All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.3) set forth,
or determined in the manner provided, in the Officers’ Certificate referred to
above or in any such indenture supplemental hereto.


 


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


 


The
Securities
shall be subordinated in right of payment to Senior Debt as provided in Article 15.


 


23

















 


Section 3.2            Denominations.


 


The
Securities of each series shall be issuable only in registered form without
coupons and only in such denominations as shall be specified as contemplated by
Section 3.1.  In the absence of any
such specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.


 


Section 3.3            Execution,
Authentication, Delivery and Dating.


 


The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
principal financial officer, its President or one of its Vice Presidents,
attested by its Treasurer, its Secretary or one of its Assistant Treasurers or
Assistant Secretaries.  The signature of
any of these officers on the Securities may be manual or facsimile.


 


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


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities.  If the form or terms of the
Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, a
copy of such Board Resolution, the Officers’ Certificate setting forth the
terms of the series and an Opinion of Counsel, with such Opinion of Counsel
stating,


 


(1)           if the form of such Securities
has been established by or pursuant to Board Resolution as permitted by Section 2.1,
that such form has been established in conformity with the provisions of this
Indenture;


 


(2)           if the terms of such
Securities have been established by or pursuant to Board Resolution as
permitted by Section 3.1, that such terms have been established in
conformity with the provisions of this Indenture; and


 


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


 


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


 


24














 


Notwithstanding
the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required
pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.


 


Each
Security shall be dated the date of its authentication.


 


No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.  Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 3.9,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


Neither
the Company nor the Trustee shall have any responsibility for any defect in the
CUSIP number that appears on any Security, check, advice of payment or
redemption notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers.


 


Section 3.4            Temporary
Securities.


 


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


 


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


 


25

















 


Section 3.5            Registration;
Registration of Transfer and Exchange.


 


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


 


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


 


At
the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.  All Securities issued upon any registration
of transfer or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.


 


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


 


No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.


 


If
the Securities of any series (or of any series and specified tenor) are to be
redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series
and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.3
and ending at the close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.


 


The
provisions of clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:


 


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


 


26

















 


(2)           Notwithstanding any other
provision in this Indenture, no Global Security may be exchanged in whole or in
part for Securities registered, and no transfer of a Global Security in whole
or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 3.1.


 


(3)           Subject to clause (2) above,
any exchange of a Global Security for other Securities may be made in whole or
in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such
Global Security shall direct.


 


(4)           Every Security authenticated
and delivered upon registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether pursuant to this Section,
Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.


 


Section 3.6            Mutilated,
Destroyed, Lost and Stolen Securities.


 


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


 


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


 


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


 


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


 


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


 


27

















 


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


 


Section 3.7            Payment
of Interest; Interest Rights Preserved.


 


Except
as otherwise provided as contemplated by Section 3.1 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.


 


Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:


 


(1)           The Company may elect to
make payment of any Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided.  Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. 
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner
set forth in Section 1.6, not less than 10 days prior to such Special
Record Date.  Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).


 


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


 


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


 


28

















 


Subject
to the provisions of Section 14.2, in the case of any Security (or any
part thereof) which is converted after any Regular Record Date and on or prior
to the next succeeding Interest Payment Date (other than any Security the
principal of (or premium, if any, on) which shall become due and payable,
whether at Stated Maturity or by declaration of acceleration or otherwise prior
to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or any one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence or in Section 14.2, in the case of
any Security (or any part thereof) which is converted, interest whose Stated
Maturity is after the date of conversion of such Security (or such part
thereof) shall not be payable.


 


Section 3.8            Persons
Deemed Owners.


 


Prior
to due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to Section 3.7)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


Section 3.9            Cancellation.


 


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


 


Section 3.10         Computation of Interest.


 


Except
as otherwise specified as contemplated by Section 3.1 for Securities of any
series, interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.


 


ARTICLE 4


 


SATISFACTION AND DISCHARGE


 


Section 4.1            Satisfaction
and Discharge of Indenture.


 


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


 


29

















 


(1)           either


 


(A)          all Securities theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6
and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Trustee or the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or


 


(B)           all such Securities not
theretofore delivered to the Trustee for cancellation


 


(i)            have become due and payable,
or


 


(ii)           will become due and payable
at their Stated Maturity within one year, or


 


(iii)          are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company,


 


and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;


 


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


 


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


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.7, the obligations of the Trustee
to any Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.


 


Section 4.2            Application
of Trust Money.


 


Subject
to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.


 


30

















 


ARTICLE 5


 


REMEDIES


 


Section 5.1            Events
of Default.


 


“Event
of Default,” wherever used herein with respect to Securities of any series,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions of Article 15
or be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless in the Board
Resolution, supplemental indenture or Officers’ Certificate establishing such
series, it is provided that such series shall not have the benefit of said
Event of Default:


 


(1)           default in the payment of
any interest upon any Security of that series when it becomes due and payable,
and continuance of such default for a period of 60 days; or


 


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


 


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


 


(4)           default in the performance,
or breach, of any covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or


 


(5)           the entry by a court having
jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or


 


(6)           the commencement by the
Company of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a 


 


31

















 


petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action; or


 


(7)           any other Event of Default
provided with respect to Securities of that series in the Board Resolution,
supplemental indenture or Officers’ Certificate establishing that series.


 


Section 5.2            Acceleration
of Maturity; Rescission and Annulment.


 


(a)           Unless the Board Resolution,
supplemental indenture or Officers’ Certificate establishing such series
provides otherwise, if an Event of Default (other than an Event of Default
specified in Section 5.1(5) or 5.1(6)) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof), and premium, if any,
together with accrued and unpaid interest, if any, thereon, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal amount
(or specified amount), and premium, if any, together with accrued and unpaid
interest, if any, thereon, shall become immediately due and payable.  If an Event of Default specified in Section 5.1(5) or
5.1(6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof), and premium, if any, together with accrued and unpaid interest, if
any, thereon, shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and
payable.  Any payments by the Company on
the Securities following any such acceleration will be subject to the
subordination provisions of Article 15 to the extent provided therein.


 


(b)           Notwithstanding the
foregoing, at the election of the Company, the sole remedy with respect to an
Event of Default for the failure by the Company to comply with its obligations
under Section 314(a)(1) of the Trust Indenture Act relating to the
Company’s failure to file any documents or reports that the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act or of its covenants set forth in Section 7.4 (any such Event of
Default, a “Reporting Default”), shall for the first 180 calendar days after
the occurrence of such Reporting Default consist exclusively of the right to
receive additional interest (the “Additional Interest”) on the Securities at an
annual rate equal to (i) 0.25% of the principal amount of the Securities
for the first 90 calendar days after the occurrence of such Reporting Default
and (ii) 0.50% of the principal amount of the Securities from the 91st day
to, and including, the 180th day after the occurrence of such Reporting
Default.  If the Company so elects, the
Additional Interest shall accrue on all Outstanding Securities from and
including the date on which such Reporting Default first occurs until such violation
is cured or waived and shall be payable as provided in Section 3.7.  On the 181st day after such Reporting Default
(if such violation is not cured or waived prior to such 181st calendar day),
then the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding securities may declare the principal of, and premium, if any,
together with accrued and unpaid interest, if any, on all such Securities to be
due and payable immediately.


 


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If
the Company elects to pay the Additional Interest as the sole remedy for the
Reporting Default, the Company shall notify in writing, by a certificate, the
Holders, the Paying Agent and the Trustee of such election at any time on or
before the close of business on the first Business Day following the date on
which such Event of Default first occurs. 
Unless and until a Responsible Officer of the Trustee receives at the
Corporate Trust Office such a certificate, the Trustee may assume without
inquiry that Additional Interest is not payable.  The Company shall pay the Additional Interest
semi-annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date following the date of such Reporting Default, in the same
manner as described on the face of the Security.


 


(c)           At any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if


 


(1)           the Company has paid or
deposited with the Trustee a sum sufficient to pay


 


(A)          all overdue interest on all
Securities of that series,


 


(B)           the principal of (and
premium, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities,


 


(C)           to the extent that payment
of such interest is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and


 


(D)          all sums paid or advanced by
the Trustee hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and


 


(2)           all Events of Default with
respect to Securities of that series, other than the non-payment of the
principal of Securities of that series that have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 5.13.


 


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


 


Section 5.3            Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The
Company covenants that if


 


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


 


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


 


33

















 


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


 


Section 5.4            Trustee
May File Proofs of Claim.


 


In
case of any judicial proceeding relative to the Company (or any other obligor
upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.  No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or
other similar committee.


 


Section 5.5            Trustee
May Enforce Claims Without Possession of Securities.


 


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


 


Section 5.6            Application
of Money Collected.


 


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


 


FIRST:  To the payment of all amounts due the Trustee
under Section 6.7;


 


SECOND:  Subject to Article 15, to the payment of
the amounts then due and unpaid for principal of and any premium, if any, and
interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and
any premium, if any, and interest, respectively; and


 


34














 


THIRD:  The balance, if any, to the Company or any
other Person or Persons entitled thereto.


 


Section 5.7            Limitation
on Suits.


 


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


 


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


 


(2)           the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;


 


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


 


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


 


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


 


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


 


Section 5.8            Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Section 3.7) interest on such Security
on the respective Stated Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date), to convert such Securities in
accordance with Article 14 to the extent that such right to convert is
applicable to such Security, and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.


 


Section 5.9            Restoration
of Rights and Remedies.


 


If
the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined 


 


35

















 


adversely to the Trustee or to such Holder, then and
in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


Section 5.10         Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 5.11         Delay or Omission Not Waiver.


 


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


 


Section 5.12         Control by Holders.


 


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


 


(1)           such direction shall not be
in conflict with any rule of law or with this Indenture and the Trustee
shall not have determined that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other series, not
taking part in such direction; and


 


(2)           the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction or this Indenture.


 


Section 5.13         Waiver of Past Defaults.


 


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


 


(1)           a default in the payment of
the principal of or any premium or interest on any Security of such series as
and when the same shall become due and payable by the terms thereof, otherwise
than by acceleration (unless such default has been cured and a sum sufficient to
pay all matured installments of interest, principal and premium, if any, has
been deposited with the Trustee), or


 


36

















 


(2)           to the extent such right is
applicable to such Security, a failure by the Company on request to convert any
Security into Common Stock; or


 


(3)           in respect of a covenant or
provision hereof which under Article 9 cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected.


 


Upon
any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.


 


Section 5.14         Undertaking for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or in any suit for the enforcement of the right to convert any Security in
accordance with Article 14.


 


Section 5.15         Waiver of Usury, Stay or
Extension Laws.


 


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


 


ARTICLE 6


 


THE TRUSTEE


 


Section 6.1            Certain
Duties and Responsibilities.


 


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


 


37

















 


Section 6.2            Notice
of Defaults.


 


If
a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that except in the case of a default in the payment of
principal of (or premium, if any) or interest on any Securities of such series
or in the payment of any sinking fund installment or any conversion right
applicable to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Securities of
such series; provided, further, however, that in the case
of any default of the character specified in Section 5.1(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event that is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.


 


Except
with respect to Section 10.1, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to the covenants contained in Article 10.  In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event
of Default occurring pursuant to Sections 5.1(1), 5.1(2) and 5.1(3) (defaults
in payments on the Securities) or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.


 


Delivery
of reports, information and documents to the Trustee under Section 7.4 is
for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates).


 


Section 6.3            Certain
Rights of Trustee.


 


Subject
to the provisions of Section 6.1:


 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


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


 


Section 6.4            Not
Responsible for Recitals or Issuance of Securities.


 


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


 


Section 6.5            May Hold
Securities and Act as Trustee under Other Indentures.


 


The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.


 


Subject
to the limitations imposed by the Trust Indenture Act, nothing in this
Indenture shall prohibit the Trustee from becoming and acting as trustee under
other indentures under which other securities, or certificates of interest of
participation in other securities, of the Company are outstanding in the same
manner as if it were not Trustee hereunder.


 


Section 6.6            Money
Held in Trust.


 


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


 


Section 6.7            Compensation
and Reimbursement.


 


The
Company agrees:


 


39

















 


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


 


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


 


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


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 5.1(5) or Section 5.1(6) hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or
similar law.


 


Section 6.8            Conflicting
Interests.


 


If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act and there is an Event of Default under the Securities
of that series, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. 
To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series.


 


Section 6.9            Corporate
Trustee Required; Eligibility.


 


There
shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series.  Each Trustee shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has (or if the Trustee is a member of a bank holding company system, its
bank holding company has) a combined capital and surplus of at least
$50,000,000.  If any such Person or bank
holding company publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person or bank holding
company shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.  If at any time the Trustee with respect to
the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.


 


Section 6.10         Resignation and Removal;
Appointment of Successor.


 


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


 


40

















 


with the applicable requirements of Section 6.11.  The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company.  If the
instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


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


 


If
at any time:


 


(1)           the Trustee shall fail to
comply with Section 6.8 after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at least six
months, or


 


(2)           the Trustee shall cease to
be eligible under Section 6.9 and shall fail to resign after written
request therefor by the Company or by any such Holder, or


 


(3)           the Trustee shall become
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,


 


then, in any such case, (A) the Company by a
Board Resolution may remove the Trustee with respect to all Securities, or (B) subject
to Section 5.14, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.


 


If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11.  If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. 
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, the retiring Trustee
may petition, or any Holder who has been a bona fide Holder of a Security of
such series for at least six months may petition, on behalf of himself and all
others similarly situated, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.


 


41

















 


The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.6.  Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.


 


Section 6.11         Acceptance of Appointment by
Successor.


 


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


 


In
case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.


 


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


 


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


 


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


 


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


 


Section 6.13         Preferential Collection of Claims
Against Company.


 


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


 


Section 6.14         Appointment of Authenticating
Agent.


 


The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.  Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.  Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having (or if the
Authenticating Agent is a member of a bank holding company system, its bank
holding company has) a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority.  If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.  If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.


 


43

















 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company.  Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall give notice of such appointment in
the manner provided in Section 1.6 to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve.  Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. 
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.


 


If
an appointment with respect to one or more series is made pursuant to this Section 6.14,
the Securities of such series may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


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


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


ARTICLE 7


 


HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.1            Company
to Furnish Trustee Names and Addresses of Holders.


 


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


 


(1)           semi-annually, not later
than 15 days after the Regular Record Date for each respective series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of such
Regular Record Date, as the case may be, or if there is no Regular Record Date
for such series of Securities, semi-annually, and


 


44














 


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


 


(3)           provided that no such
list need be furnished by the Company to the Trustee so long as the Trustee is
acting as Security Registrar.


 


Section 7.2            Preservation
of Information; Communications to Holders.


 


The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.1 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.


 


The
rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.  Every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.


 


Section 7.3            Reports
by Trustee.


 


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


 


Reports
so required to be transmitted at stated intervals of not more than 12 months
shall be transmitted no later than July 15 in each calendar year,
commencing with the first July 15 after the first issuance of Securities
pursuant to this Indenture.


 


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


 


Section 7.4            Reports
by Company.


 


Any
information, documents or other reports that the Company shall file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is filed with the
Commission; provided that any such information, documents or reports
filed or furnished with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed to be filed
with the Trustee as of the time such information, documents or reports are
filed or furnished via EDGAR.


 


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ARTICLE 8


 


CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.1            Company May Consolidate, etc.,  Only on Certain Terms.


 


The
Company shall not consolidate with or merge into any other Person (other than a
Subsidiary of the Company) (in a transaction in which the Company is not the
surviving corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person (other than a Subsidiary of the
Company), unless:


 


(1)           in case the Company shall
consolidate with or merge into another Person (in a transaction in which the
Company is not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
limited liability company, partnership, trust or other business entity, shall
be organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed and the conversion rights shall be
provided for in accordance with Article 14, if applicable, or as otherwise
specified pursuant to Section 3.1, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee, by the Person
(if other than the Company) formed by such consolidation or into which the
Company shall have been merged or by the Person which shall have acquired the
Company’s assets;


 


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


 


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


 


Section 8.2            Successor
Substituted.


 


Upon
any consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


46

















 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.1            Supplemental
Indentures Without Consent of Holders.


 


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


 


(1)           to evidence the succession
of another Person to the Company, or successive successions, and the assumption
by any such successor of the covenants of the Company herein and in the
Securities in compliance with Article 8; or


 


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


 


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


 


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


 


(5)           to add to, change or eliminate
any of the provisions of this Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or


 


(6)           to secure the Securities,
including provisions regarding the circumstances under which Collateral may be
released or substituted; or


 


(7)           to add or provide for a
guaranty of the Securities or additional obligors on the Securities; or


 


(8)           to establish the form or
terms of Securities of any series as permitted by Sections 2.1 and 3.1; or


 


47

















 


(9)           to evidence and provide for
the acceptance of appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11; or


 


(10)         to cure any ambiguity, to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided
that such action pursuant to this clause (10) shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect; or


 


(11)         to supplement any of the
provisions of the Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to
Articles 4 and 13, provided that any such action shall not
adversely affect the interests of the Holders of Securities of such series or
any other series of Securities in any material respect.


 


Section 9.2            Supplemental
Indentures with Consent of Holders.


 


With
the consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,


 


(1)           change the Stated Maturity
of the principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the
amount of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change the place of payment
or the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of this
Indenture with respect to the subordination of such series of Securities in a
manner materially adverse to the Holders of Securities of such series, or, in
the case of Securities of any series that are convertible into Securities or
other securities of the Company, adversely affect the right of Holders to
convert any of the Securities of such series other than as provided in or
pursuant to this Indenture, or


 


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


 


(3)           modify any of the provisions
of this Section, Section 5.13 or Section 10.8, except to increase any
such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder with 


 


48

















 


respect to changes in the references to “the Trustee” and concomitant
changes in this Section and Section 10.8, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 9.1(8),
or


 


(4)           if applicable, make any change
that adversely affects the right to convert any security as provided in Article 14
or pursuant to Section 3.1 (except as permitted by Section 9.1(9)).


 


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


 


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


 


Section 9.3            Execution
of Supplemental Indentures.


 


In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Sections 6.1 and 6.3) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


Section 9.4            Effect
of Supplemental Indentures.


 


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


 


Section 9.5            Conformity
with Trust Indenture Act.


 


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


 


Section 9.6            Reference
in Securities to Supplemental Indentures.


 


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


 


49

















 


Section 9.7            Subordination
Unimpaired.


 


No
provision in any supplemental indenture that affects the superior position of
the holders of Senior Debt shall be effective against holders of Senior Debt.


 


ARTICLE 10


 


COVENANTS


 


Section 10.1         Payment of Principal, Premium and
Interest.


 


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


 


Section 10.2         Maintenance of Office or Agency.


 


The
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series may be
surrendered for conversion and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.  Unless otherwise provided in a supplemental
indenture or pursuant to Section 3.1 hereof, the Place of Payment for any
series of Securities shall be the Corporate Trust Office of the Trustee.


 


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


 


Section 10.3         Money for Securities Payments to
be Held in Trust.


 


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


 


Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, on or prior to each due date of the principal of or any premium or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.


 


50

















 


The
Company will cause each Paying Agent for any series of Securities other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.


 


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


 


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


 


Section 10.4         Statement by Officers as to
Default.


 


The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.  The fiscal year of the Company currently ends
on December 31; and the Company will give the Trustee prompt written
notice of any change of its fiscal year.


 


Section 10.5         Existence.


 


Subject
to Article 8, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence.


 


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Section 10.6         Maintenance of Properties.


 


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


 


Section 10.7         Payment of Taxes and Other
Claims.


 


The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or upon the income, profits or
property of the Company, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (i) whose amount, applicability or validity is
being contested in good faith by appropriate proceedings or (ii) if the
failure to pay or discharge would not have a material adverse effect on the
assets, business, operations, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole.


 


Section 10.8         Waiver of Certain Covenants.


 


Except
as otherwise specified as contemplated by Section 3.1 for Securities of
such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 3.1(19), 9.1(2),
9.1(7), 10.6 or 10.7 for the benefit of the Holders of such series if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.


 


ARTICLE 11


 


REDEMPTION OF SECURITIES


 


Section 11.1         Applicability of Article.


 


Securities
of any series that are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for such Securities) in accordance with this
Article.


 


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Section 11.2         Election to Redeem; Notice to
Trustee.


 


The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 3.1
for such Securities.  In case of any
redemption at the election of the Company of less than all the Securities of
any series (including any such redemption affecting only a single Security),
the Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed.  In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction.


 


Section 11.3         Selection by Trustee of
Securities to Be Redeemed.


 


If
less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not more than 45 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by lot, or in the Trustee’s discretion, on a
pro-rata basis, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security.  If less than all the Securities of such
series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.


 


If
any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption.  Securities that have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.


 


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


 


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


 


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


 


53

















 


Section 11.4         Notice of Redemption.


 


Notice
of redemption shall be given by first-class mail, postage prepaid, mailed not
fewer than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to each Holder of
Securities to be redeemed, at its address appearing in the Security Register.


 


All
notices of redemption shall state:


 


(1)           the Redemption Date,


 


(2)           the Redemption Price
(including accrued interest, if any),


 


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


 


(4)           in case any Security is to
be redeemed in part only, that on and after the Redemption Date, upon surrender
of such Security, the Holder of such Security will receive, without charge, a
new Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed,


 


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


 


(6)           the place or places where
each such Security is to be surrendered for payment of the Redemption Price,


 


(7)           if applicable, the
conversion price or conversion rate, as the case may be, the date on which the
right to convert the principal of the Securities or the portions thereof to be
redeemed will terminate, and the place or places where such Securities may be
surrendered for conversion,


 


(8)           that the redemption is for a
sinking fund, if such is the case, and


 


(9)           the CUSIP number or numbers
and/or common codes of the Security being redeemed.


 


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


 


Section 11.5         Deposit of Redemption Price.


 


On
or prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.


 


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If
any Security called for redemption is converted, any money deposited with the
Trustee or with a Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to the right of any Holder of such
Security to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company on Company Request, or if then held by the Company,
shall be discharged from such trust.


 


Section 11.6         Securities Payable on Redemption
Date.


 


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. 
Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.


 


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


 


Section 11.7         Securities Redeemed in Part.


 


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


 


ARTICLE 12


 


SINKING FUNDS


 


Section 12.1         Applicability of Article.


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.


 


The
minimum amount of any sinking fund payment provided for by the terms of any
Securities is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an “optional sinking fund payment.”  If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. 
Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.


 


55

















 


Section 12.2         Satisfaction of Sinking Fund
Payments with Securities.


 


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


 


Section 12.3         Redemption of Securities for
Sinking Fund.


 


Not
fewer than 60 days prior to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing sinking fund payment for such Securities pursuant to
the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities pursuant to Section 12.2
and will also deliver to the Trustee any Securities to be so delivered.  Not fewer than 30 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 11.3
and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 11.4.  Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.


 


ARTICLE 13


 


DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.1         Company’s Option to Effect
Defeasance or Covenant Defeasance.


 


The
Company may elect, at its option at any time, to have Section 13.2 or Section 13.3
applied to any Securities or any series of Securities, as the case may be,
designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2
or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1
and upon compliance with the conditions set forth below in this Article.  Any such election shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 3.1
for such Securities.


 


Section 13.2         Defeasance and Discharge.


 


Upon
the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be, the Company
shall be deemed to have been discharged from its obligations, and the
provisions of Article 15 shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter 


 


56

















 


called “Defeasance”).  For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder:


 


(1)           the rights of Holders of
such Securities to receive, solely from the trust fund described in Section 13.4
and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when payments are
due,


 


(2)           the Company’s obligations
with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and
10.3, and, if applicable, Article 14,


 


(3)           the rights, powers, trusts,
duties and immunities of the Trustee hereunder, and


 


(4)           this Article.


 


Subject
to compliance with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 13.3 applied to such
Securities.


 


Section 13.3         Covenant Defeasance.


 


Upon
the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be,


 


(1)           the Company shall be
released from its obligations under Sections 10.6 and 10.7 and any
covenants provided pursuant to Sections 3.1(19), 9.1(2) or 9.1(7) for
the benefit of the Holders of such Securities,


 


(2)           the occurrence of any event
specified in Sections 5.1(4) (with respect to any of
Sections 10.6 and 10.7 and any such covenants provided pursuant to Section 3.1(19),
9.1(2) or 9.1(7)) and the occurrence of any Event of Default specified
pursuant to Section 3.1, shall be deemed not to be or result in an Event
of Default, and


 


(3)           the provisions of Article 15
shall cease to be effective,


 


in each case with respect to such Securities or
series of Securities as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called “Covenant
Defeasance”).  For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 5.1(4) and the occurrence
of any Event of Default specified pursuant to Section 3.1) or Article 15,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.


 


57

















 


Section 13.4         Conditions to Defeasance or
Covenant Defeasance.


 


The
following shall be the conditions to the application of Section 13.2 or Section 13.3
to any Securities or any series of Securities, as the case may be:


 


(1)           The Company shall
irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee which satisfies the requirements contemplated by Section 6.9
and agrees to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities,


 


(A)          in the case of Securities of
a series denominated in currency of the United States of America,


 


(i)            cash in currency of the
United States of America in an amount, or


 


(ii)           U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, an amount in cash, or


 


(iii)          a combination thereof, or


 


(B)           in the case of Securities of
a series denominated in currency other than that of the United States of
America,


 


(i)            cash in the currency in which
such series of Securities is denominated in an amount, or


 


(ii)           Foreign Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, an amount in cash, or


 


(iii)          a combination thereof,


 


in each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities.


 


(2)           In the event of an election
to have Section 13.2 apply to any Securities or any series of Securities,
as the case may be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that


 


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


 


58

















 


(B)           since the date of this
instrument, there has been a change in the applicable Federal income tax law,


 


(C)           in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.


 


(3)           In the event of an election
to have Section 13.3 apply to any Securities or any series of Securities,
as the case may be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant Defeasance were
not to occur.


 


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


 


(5)           No event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event
specified in Sections 5.1(5) and (6), at any time on or prior to the
90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).


 


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


 


(7)           Such Defeasance or Covenant
Defeasance shall not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound.


 


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


 


(9)           At the time of such deposit,


 


(A)          no default in the payment of
any principal of or premium or interest on any Senior Debt shall have occurred
and be continuing,


 


(B)           no event of default with
respect to any Senior Debt shall have resulted in such Senior Debt becoming,
and continuing to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of such Senior Debt has
been made or duly provided for), and


 


59

















 


(C)           no other event of default with
respect to any Senior Debt shall have occurred and be continuing permitting
(after notice or lapse of time or both) the holders of such Senior Debt (or a
trustee on behalf of such holders) to declare such Senior Debt due and payable
prior to the date on which it would otherwise have become due and payable.


 


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


 


Section 13.5         Deposited Money, U.S. Government
Obligations and Foreign Government Obligations to be Held in Trust;
Miscellaneous Provisions.


 


Subject
to the provisions of the last paragraph of Section 10.3, all money, U.S.
Government Obligations and Foreign Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 13.6, the Trustee
and any such other trustee are referred to collectively as the “Trustee”)
pursuant to Section 13.4 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.  Money, U.S.
Government Obligations and Foreign Government Obligations so held in trust
shall not be subject to the provisions of Article 15.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Section 13.4 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.


 


Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money, U.S.
Government Obligations or Foreign Government Obligations held by it as provided
in Section 13.4 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.


 


Section 13.6         Reinstatement.


 


If
the Trustee or the Paying Agent is unable to apply any money in accordance with
this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.2 or 13.3 shall be revived and reinstated
as though no deposit had occurred pursuant to this Article with respect to
such Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 13.5 with respect to
such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.


 


60

















 


ARTICLE 14


 


CONVERSION OF SECURITIES


 


Section 14.1         Applicability of Article.


 


The
provisions of this Article shall be applicable to the Securities of any
series which are convertible into shares of Common Stock of the Company, and
the issuance of such shares of Common Stock upon the conversion of such
Securities, except as otherwise specified as contemplated by Section 3.1
for the Securities of such series.


 


Section 14.2         Exercise of Conversion Privilege.


 


In
order to exercise a conversion privilege, the Holder of a Security of a series
with such a privilege shall surrender such Security to the Company at the
office or agency maintained for that purpose pursuant to Section 10.2,
accompanied by a duly executed conversion notice to the Company substantially
in the form set forth in Section 2.6 stating that the Holder elects to
convert such Security or a specified portion thereof.  Such notice shall also state, if different
from the name and address of such Holder, the name or names (with address) in
which the certificate or certificates for shares of Common Stock, which shall
be issuable on such conversion, shall be issued.  Securities surrendered for conversion shall
(if so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company and
the Trustee duly executed by the Holder or its attorney duly authorized in
writing; and Securities so surrendered for conversion (in whole or in part)
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (excluding
Securities or portions thereof called for redemption during the period
beginning at the close of business on a Regular Record Date and ending at the
opening of business on the first Business Day after the next succeeding
Interest Payment Date, or if such Interest Payment Date is not a Business Day,
the second such Business Day) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such Holder notwithstanding
the conversion of such Security, subject to the provisions of Section 3.7
relating to the payment of Defaulted Interest by the Company.  As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution and,
subject to Section 3.3, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto setting forth the terms of such series of Security, and the
surrender of such Security in accordance with such reasonable regulations as
the Company may prescribe, the Company shall issue and shall deliver, at the
office or agency at which such Security is surrendered, to such Holder or on
its written order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such Security (or specified
portion thereof), in accordance with the provisions of such Board Resolution,
Officers’ Certificate or supplemental indenture, and cash as provided therein
in respect of any fractional share of such Common Stock otherwise issuable upon
such conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and
such payment, if required, shall have been received in proper order for
conversion by the Company and such Security shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such Security and shall
have instructed the Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled to convert such
Security on such date, in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such date) and at such time
the rights of the Holder of such Security as such Security Holder shall cease
and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock 


 


61

















 


of the Company shall be issuable upon such
conversion shall be deemed to have become the Holder or Holders of record of
the shares represented thereby.  Except
as set forth above and subject to the final paragraph of Section 3.7, no
payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities (or any part thereof) surrendered for
conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.


 


In
the case of any Security which is converted in part only, upon such conversion
the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unconverted portion of such Security.


 


Section 14.3         No Fractional Shares.


 


No
fractional share of Common Stock of the Company shall be issued upon
conversions of Securities of any series. 
If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered.  If, except for the
provisions of this Section 14.3, any Holder of a Security or Securities
would be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Common Stock is
listed or admitted to unlisted trading privileges on a national securities
exchange or market, on the basis of the last reported sale price regular way on
such exchange or market on the last trading day prior to the date of conversion
upon which such a sale shall have been effected, or (ii) if such Common
Stock is not at the time so listed or admitted to unlisted trading privileges
on a national securities exchange or market, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the-counter market, on
the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the National
Quotation Bureau, Incorporated is no longer reporting such information, or if
not so available, the fair market price as determined by the Board of
Directors.  For purposes of this Section,
“trading day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the Nasdaq Global
Market, or if the Common Stock is not traded on the Nasdaq Global Market, on
the principal exchange or market on which the Common Stock is traded or quoted.


 


Section 14.4         Adjustment of Conversion Price or
Conversion Rate.


 


The
conversion price or conversion rate, as the case may be, of Securities of any
series that is convertible into Common Stock of the Company shall be adjusted
for any stock dividends, stock splits, reclassifications, combinations or
similar transactions in accordance with the terms of the supplemental indenture
or Board Resolutions setting forth the terms of the Securities of such series.


 


Whenever
the conversion price or conversion rate, as the case may be, is adjusted, the
Company shall compute the adjusted conversion price or conversion rate, as the
case may be, in accordance with terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officers’ Certificate setting forth
the adjusted conversion price or conversion rate, as the case may be, and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 10.2 and,
if different, with the Trustee.  The
Company shall forthwith cause a notice setting forth the adjusted conversion
price or 


 


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conversion rate, as the case may be, to be mailed,
first class postage prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any conversion agent other
than the Trustee.


 


Section 14.5         Notice of Certain Corporate
Actions.


 


In
case:


 


(1)           the Company shall declare a
dividend (or any other distribution) on its Common Stock payable otherwise than
in cash out of its retained earnings (other than a dividend for which approval
of any shareholders of the Company is required) that would require an
adjustment pursuant to Section 14.4; or


 


(2)           the Company shall authorize
the granting to all or substantially all of the holders of its Common Stock of
rights, options or warrants to subscribe for or purchase any shares of capital
stock of any class or of any other rights (other than any such grant for which
approval of any shareholders of the Company is required); or


 


(3)           of any reclassification of
the Common Stock of the Company (other than a subdivision or combination of its
outstanding shares of Common Stock, or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of any
shareholders of the Company is required), or of the sale of all or
substantially all of the assets of the Company; or


 


(4)           of the voluntary or
involuntary dissolution, liquidation or winding up of the Company;


 


then the Company shall cause to be filed with the
Trustee, and shall cause to be mailed to all Holders at their last addresses as
they shall appear in the Security Register, at least 20 days (or 10 days in any
case specified in clause (1) or (2) above) prior to the
applicable record date hereinafter specified, a notice stating (i) the
date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights, options or warrants are to be determined,
or (ii) the date on which such reclassification, consolidation, merger,
share exchange, sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up.  If at any
time the Trustee shall not be the conversion agent, a copy of such notice shall
also forthwith be filed by the Company with the Trustee.


 


Section 14.6         Reservation of Shares of Common
Stock.


 


The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding
Securities of any series that has conversion rights.


 


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Section 14.7         Payment of Certain Taxes upon
Conversion.


 


Except
as provided in the next sentence, the Company will pay any and all taxes that
may be payable in respect of the issue or delivery of shares of its Common
Stock on conversion of Securities pursuant hereto.  The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of its Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.


 


Section 14.8         Nonassessability.


 


The
Company covenants that all shares of its Common Stock that may be issued upon
conversion of Securities will upon issue in accordance with the terms hereof be
duly and validly issued and fully paid and nonassessable.


 


Section 14.9         Provision in Case of
Consolidation, Merger or Sale of Assets.


 


In
case of any consolidation or merger of the Company with or into any other
Person, any merger of another Person with or into the Company (other than a
merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the assets
of the Company, the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security of a series then Outstanding that is convertible into Common
Stock of the Company shall have the right thereafter (which right shall be the
exclusive conversion right thereafter available to said Holder), during the
period such Security shall be convertible, to convert such Security only into
the kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by a holder of the
number of shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease, assuming such holder of Common Stock of
the Company (i) is not a Person with which the Company consolidated or
merged with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a “Constituent
Person”), or an Affiliate of a Constituent Person and (ii) failed to
exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (provided that if the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer, or lease is not the same for each share of
Common Stock of the Company held immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease by others than a Constituent Person
or an Affiliate thereof and in respect of which such rights of election shall
not have been exercised (“Non-electing Share”), then for the purpose of this Section 14.9
the kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by the holders of
each Non-electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-electing Shares).  Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article or in accordance with the
terms of the supplemental indenture or Board Resolutions setting forth the
terms of such adjustments.  The above
provisions of this Section 14.9 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases.  Notice of the execution of such a
supplemental indenture shall be given by the Company to the Holder of each
Security of a series that is convertible into Common Stock of the Company as
provided in Section 1.6 promptly upon such execution.


 


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Neither
the Trustee nor any conversion agent, if any, shall be under any responsibility
to determine the correctness of any provisions contained in any such
supplemental indenture relating either to the kind or amount of shares of stock
or other securities or property or cash receivable by Holders of Securities of
a series convertible into Common Stock of the Company upon the conversion of
their Securities after any such consolidation, merger, conveyance, transfer,
sale or lease or to any such adjustment, but may accept as conclusive evidence
of the correctness of any such provisions, and shall be protected in relying
upon, an Opinion of Counsel with respect thereto, which the Company shall cause
to be furnished to the Trustee upon request.


 


Section 14.10       Duties of Trustee Regarding
Conversion.


 


Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Securities of any series that is convertible
into Common Stock of the Company to determine whether any facts exist which may
require any adjustment of the conversion price or conversion rate, as the case
may be, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same.  Neither the Trustee nor
any conversion agent shall be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock of the Company, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Securities and neither the Trustee nor any conversion agent
makes any representation with respect thereto. 
Subject to the provisions of Section 6.1, neither the Trustee nor
any conversion agent shall be responsible for any failure of the Company to
issue, transfer or deliver any shares of its Common Stock or stock certificates
or other securities or property upon the surrender of any Security for the
purpose of conversion or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.


 


Section 14.11       Repayment of Certain Funds upon
Conversion.


 


Any
funds which at any time shall have been deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including, but not limited to, funds deposited for the sinking fund
referred to in Article 12 hereof and funds deposited pursuant to Article 13
hereof) and which shall not be required for such purposes because of the
conversion of such Securities as provided in this Article 14 shall after
such conversion be repaid to the Company by the Trustee upon the Company’s
written request.


 


ARTICLE 15


 


SUBORDINATION OF SECURITIES


 


Section 15.1         Agreement of Subordination.


 


Except
as otherwise provided in a supplemental indenture or pursuant to Section 3.1,
the Company covenants and agrees, and each Holder of Securities issued
hereunder by its acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article 15;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees to be bound by
such provisions.


 


65

















 


The
payment of the principal of, premium, if any, and interest on all Securities
(including, but not limited to, the redemption price with respect to the
Securities called for redemption in accordance with Article 11 as provided
in the Indenture) issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Debt, whether outstanding at the date of
this Indenture or thereafter incurred.


 


No
provision of this Article 15 shall prevent the occurrence of any default
or Event of Default hereunder.


 


Section 15.2         Payments to Holders.


 


No
payment shall be made with respect to the principal of, or premium, if any, or
interest on the Securities (including, but not limited to, the redemption price
with respect to the Securities to be called for redemption in accordance with Article 11
as provided in the Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 15.5, if:


 


(i)            a default in the payment of
principal, premium, if any, interest, rent or other obligations due on any
Senior Debt occurs and is continuing (or, in the case of Senior Debt for which
there is a period of grace, in the event of such a default that continues
beyond the period of grace, if any, specified in the instrument or lease
evidencing such Senior Debt) (a “Payment Default”), unless and until such
default shall have been cured or waived or shall have ceased to exist; or


 


(ii)           a default, other than a
Payment Default, on any Designated Senior Debt occurs and is continuing that
then permits holders of such Designated Senior Debt to accelerate its maturity
and the Trustee receives a notice of the default (a “Payment Blockage Notice”)
from a holder of Designated Senior Debt, a Representative of Designated Senior
Debt or the Company (a “Non-Payment Default”).


 


If
the Trustee receives any Payment Blockage Notice pursuant to clause (ii) above,
no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless
and until at least 365 days shall have elapsed since the initial effectiveness
of the immediately prior Payment Blockage Notice.  No Non-Payment Default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.


 


The
Company may and shall resume payments on and distributions in respect of the
Securities upon the earlier of:


 


(2)           in the case of any Payment
Default, the date upon which the Payment Default is cured or waived or ceases
to exist, or


 


(3)           in the case of a Non-Payment Default, the earlier of (a) the
date upon which such Non-Payment Default is cured, waived or ceases to exist or
(b) 179 days after the date on which the applicable Payment Blockage
Notice is received by the Trustee, unless this Article 15 otherwise prohibits
the payment or distribution at such time.


 


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Upon
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, reorganization, liquidation,
receivership or other proceedings, or upon an assignment for the benefit of
creditors or any marshalling of the assets and liabilities of the Company, or
otherwise, all amounts due or to become due upon all Senior Debt shall first be
paid in full in cash or other payment satisfactory to the holders of such
Senior Debt, or payment thereof in accordance with its terms provided for in
cash or other payment satisfactory to the holders of such Senior Debt, before
any payment is made on account of the principal of, premium, if any, or
interest on the Securities (except payments made pursuant to Article 4 from
monies deposited with the Trustee pursuant thereto prior to commencement of
proceedings for such dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or the marshalling of assets and
liabilities of the Company); and upon any such dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or bankruptcy, insolvency,
receivership or other proceeding, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provision of this Article 15, shall (except as
aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Debt (pro rata to
such holders on the basis of the respective amounts of Senior Debt held by such
holders, or as otherwise required by law or a court order) or their
Representative or Representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Debt in full, in cash or other payment satisfactory to the
holders of such Senior Debt, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt, before any payment or
distribution or provision therefor is made to the Holders of the Securities or
to the Trustee.


 


For
purposes of this Article 15, the words, “cash, property or securities”
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article 15 with
respect to the Securities to the payment of all Senior Debt which may at the
time be outstanding; provided that (i) the Senior Debt is assumed
by the new corporation, if any, resulting from any reorganization or
readjustment, and (ii) the rights of the holders of Senior Debt (other
than leases which are not assumed by the Company or the new corporation, as the
case may be) are not, without the consent of such holders, altered by such
reorganization or readjustment.  The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the conveyance
or transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article 8
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 15.2 if such other corporation shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 8.


 


In
the event of the acceleration of the Securities because of an Event of Default,
no payment or distribution shall be made to the Trustee or any Holder of
Securities in respect of the principal of, premium, if any, or interest on the
Securities (including, but not limited to, the redemption price with respect to
the Securities called for redemption in accordance with Article 11 as
provided in the Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 15.5,
until all 


 


67

















 


Senior Debt has been paid in full in cash or other
payment satisfactory to the holders of Senior Debt or such acceleration is
rescinded in accordance with the terms of this Indenture.  If payment of the Securities is accelerated
because of an Event of Default, the Company shall promptly notify holders of
Senior Debt of the acceleration.


 


In
the event that, notwithstanding the foregoing provisions, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (including, without limitation, by way of setoff
or otherwise), prohibited by the foregoing, shall be received by the Trustee or
the Holders of the Securities before all Senior Debt is paid in full in cash or
other payment satisfactory to the holders of such Senior Debt, or provision is made
for such payment thereof in accordance with its terms in cash or other payment
satisfactory to the holders of such Senior Debt, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered
to the holders of Senior Debt or their Representative or Representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Debt may have been issued, as their respective interests
may appear, as calculated by the Company, for application to the payment of all
Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in
full in cash or other payment satisfactory to the holders of such Senior Debt,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Debt.


 


Nothing
in this Section 15.2 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.7. 
This Section 15.2 shall be subject to the further provisions of Section 15.5.


 


Section 15.3         Subrogation of Securities.


 


Subject
to the payment in full of all Senior Debt, the rights of the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt pursuant to the provisions of this Article 15
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is entitled
to like rights of subrogation) to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Debt until the principal, premium, if any, and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article 15,
and no payment over pursuant to the provisions of this Article 15, to or
for the benefit of the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Debt; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders of the Securities pursuant to the subrogation provisions of this Article 15,
which would otherwise have been paid to the holders of Senior Debt shall be
deemed to be a payment by the Company to or for the account of the
Securities.  It is understood that the
provisions of this Article 15 are and are intended solely for the purposes
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.


 


Nothing
contained in this Article 15 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the Holders
of the Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders
of the Senior Debt, nor shall 


 


68

















 


anything herein or therein prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article 15 of the holders of Senior Debt in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy.


 


Upon
any payment or distribution of assets of the Company referred to in this Article 15,
the Trustee, subject to the provisions of Section 6.1, and the Holders of
the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such bankruptcy, dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, delivered to the Trustee
or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Debt and other indebtedness of the Company, the amount thereof or payable
thereon and all other facts pertinent thereto or to this Article 15.


 


Section 15.4         Authorization to Effect
Subordination.


 


Each
Holder of a Security by the holder’s acceptance thereof authorizes and directs
the Trustee on the holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 15
and appoints the Trustee to act as the holder’s attorney-in-fact for any and
all such purposes.  If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 5.4 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior Debt or
their representatives are hereby authorized to file an appropriate claim for
and on behalf of the Holders of the Securities.


 


Section 15.5         Notice to Trustee.


 


The
Company shall give prompt written notice in the form of an Officers’
Certificate to a Responsible Officer of the Trustee and to any Paying Agent of
any fact known to the Company which would prohibit the making of any payment of
monies to or by the Trustee or any Paying Agent in respect of the Securities
pursuant to the provisions of this Article 15.  Notwithstanding the provisions of this Article 15
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Securities pursuant to
the provisions of this Article 15, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof at the Corporate
Trust Office from the Company (in the form of an Officers’ Certificate) or a
Representative or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; provided that if on a date
not fewer than two Business Days prior to the date upon which by the terms
hereof any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of, or premium, if any, or interest on
any Security) the Trustee shall not have received, with respect to such monies,
the notice provided for in this Section 15.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.


 


Notwithstanding
anything in this Article 15 to the contrary, nothing shall
prevent any payment by the Trustee to the Holders of monies deposited with
it pursuant to Section 4.1, and any such payment shall not be subject to
the provisions of Section 15.1 or 15.2.


 


69

















 


The
Trustee, subject to the provisions of Section 6.1, shall be entitled to
rely on the delivery to it of a written notice by a Representative or a person
representing himself to be a holder of Senior Debt (or a trustee on behalf of
such holder) to establish that such notice has been given by a Representative or
a holder of Senior Debt or a trustee on behalf of any such holder or
holders.  The Trustee shall not be
required to make any payment or distribution to or on behalf of a holder of
Senior Debt pursuant to this Article 15 unless it has received satisfactory
evidence as to the amount of Senior Debt held by such person, the extent to
which such person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such person under this Article 15.


 


Section 15.6         Trustee’s Relation to Senior
Debt.


 


The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article 15 in respect of any Senior Debt at any time held by
it, to the same extent as any other holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.


 


With
respect to the holders of Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Article 15, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee.  The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and, subject to
the provisions of Section 6.1, the Trustee shall not be liable to any
holder of Senior Debt (i) for any failure to make any payments or
distributions to such holders or (ii) if it shall pay over or deliver to
Holders of Securities, the Company or any other Person money or assets to which
any holder of Senior Debt shall be entitled by virtue of this Article 15
or otherwise.


 


Section 15.7         No Impairment of Subordination.


 


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


 


Section 15.8         Certain Conversions/Exchanges
Deemed Payment.


 


For
the purposes of this Article 15 only, (1) the issuance and delivery
of junior securities upon conversion or exchange of Securities in accordance
with Article 14 or otherwise (except upon conversion of the Securities in
accordance with their terms) shall not be deemed to constitute a payment or
distribution on account of the principal of (or premium, if any) or interest on
Securities or on account of the purchase or other acquisition of Securities,
and (2) the payment, issuance or delivery of cash (except in satisfaction
of fractional shares pursuant to Section 14.3), property or securities
(other than junior securities) upon conversion or exchange of a Security shall
be deemed to constitute payment on account of the principal of such
Security.  For the purposes of this Section 15.8,
the term “junior securities” means (a) shares of any stock of any class of
the Company, or (b) securities of the Company which are subordinated in
right of payment to all Senior Debt which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article.  Nothing contained in this Article 15
or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of Securities, the right, which is absolute and unconditional,
of the Holder of any Security to convert such Security in accordance with Article 14.


 


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Section 15.9         Article Applicable to Paying
Agents.


 


If
at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term “Trustee” as used in this
Article shall (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that
the first paragraph of Section 15.5 shall not apply to the Company or any
Affiliate of the Company if the Company or such Affiliate acts as Paying Agent.


 


The
Trustee shall not be responsible for the actions or inactions of any other
Paying Agents (including the Company if acting as its own Paying Agent) and
shall have no control of any funds held by such other Paying Agents.


 


Section 15.10       Senior Debt Entitled to Rely.


 


The
holders of Senior Debt (including, without limitation, Designated Senior Debt)
shall have the right to rely upon this Article 15, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders unless such holders shall have agreed in writing thereto.


 


Section 15.11       Reliance on Judicial Order or
Certificate of Liquidating Agent.


 


Upon
any payment or distribution of assets of the Company referred to in this
Article, the Trustee and the Holders shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company or
bankruptcy, insolvency, receivership or other like proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.


 


Section 15.12       Trust Monies Not Subordinated.


 


Notwithstanding
anything contained herein to the contrary, payments from money, U.S. Government
Obligations and/or Foreign Government Obligations held in trust under Article 4
or Article 13 by the Trustee for the payment of the principal of, premium,
if any, and interest on the Securities shall not be subordinated to the prior
payment in full of any Senior Debt of the Company or subject to the
restrictions set forth in this Article 15, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.


 


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intentionally left blank.]


 


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


 


	
   

  	
  HAWAIIAN HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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