Blueprint





 











Exhibit 4.6


 


TG
THERAPEUTICS, INC.


 


FORM
OF


 


INDENTURE


 


Dated
as of


 


[ ],
20[ ]


 


DEBT
SECURITIES


 


[___]


 


Trustee


 


 







 



CROSS REFERENCE SHEET


 


Cross-reference
sheet of provisions of the Trust Indenture Act of 1939 and this
indenture*


 


	

Trust
Indenture


Act
Section

	
 

	

 Indenture
Section



	

§310

	

(a)

	
 

	

11.04(a),
16.02


	
 

	

(b)

	
 

	

11.01(f),
11.04(b), 11.05(1), 16.02


	
 

	

(b)(1)

	
 

	

11.04(b),
16.02


	

§311

	
 

	
 

	

11.01(f),
16.02


	

§312

	
 

	
 

	

14.02(d),
16.02


	
 

	

(b)

	
 

	

11.10,
16.02


	
 

	

(c)

	
 

	

11.10,
16.02


	

§313

	

(a)

	
 

	

10.01(a),
16.02


	

§314

	
 

	
 

	

16.02


	

§315

	

(e)

	
 

	

11.05,
16.02


	

§316

	
 

	
 

	

16.02


	

§317

	
 

	
 

	

16.02


	

§317

	
 

	
 

	

16.02







 


	

*

	

This
reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture. Attention should also be directed to
Section 318(c) of the Trust Indenture Act of 1939, which provides
that the provisions of Sections 310 to and including 317 of the
Trust Indenture Act of 1939 are a part of and govern every
qualified indenture, whether or not physically contained
therein.







 


ii



 







 











TABLE
OF CONTENTS


 


	

Article
I


	

DEFINITIONS


	
 

	
 

	
 


	

Section
1.01

	


Definitions.

	

1


	
 

	
 

	
 


	

Article
II


	

FORMS
OF SECURITIES


	
 


	

Section
2.01

	


Terms of the Securities.

	

11


	

Section
2.02

	

Form of
Trustee’s Certificate of Authentication.

	

12


	
 

	
 

	
 


	

Article
III


	

THE
DEBT SECURITIES


	
 


	

Section
3.01

	


Amount Unlimited; Issuable in Series.

	

12


	

Section
3.02

	


Denominations.

	

15


	

Section
3.03

	


Execution, Authentication, Delivery and Dating.

	

15


	

Section
3.04

	


Temporary Securities.

	

17


	

Section
3.05

	


Registrar and Paying Agent.

	

18


	

Section
3.06

	


Transfer and Exchange.

	

18


	

Section
3.07

	


Mutilated, Destroyed, Lost and Stolen
Securities.

	

22


	

Section
3.08

	


Payment of Interest; Interest Rights Preserved.

	

23


	

Section
3.09

	


Cancellation.

	

24


	

Section
3.10

	


Computation of Interest.

	

24


	

Section
3.11

	


Currency of Payments in Respect of Securities.

	

24


	

Section
3.12

	


Judgments.

	

25


	

Section
3.13

	


CUSIP Numbers.

	

25


	
 

	
 

	
 


	

Article
IV


	

REDEMPTION
OF SECURITIES


	
 


	

Section
4.01

	


Applicability of Right of Redemption.

	

26


	

Section
4.02

	


Selection of Securities to be Redeemed.

	

26


	

Section
4.03

	


Notice of Redemption.

	

26


	

Section
4.04

	


Deposit of Redemption Price.

	

27


	

Section
4.05

	


Securities Payable on Redemption Date.

	

27


	

Section
4.06

	


Securities Redeemed in Part.

	

28


	
 

	
 

	
 


	

Article
V


	

SINKING
FUNDS


	
 


	

Section
5.01

	


Applicability of Sinking Fund.

	

28


	

Section
5.02

	


Mandatory Sinking Fund Obligation.

	

28


	

Section
5.03

	


Optional Redemption at Sinking Fund Redemption
Price.

	

29


	

Section
5.04

	


Application of Sinking Fund Payment.

	

29







 


iii



 







 











	

Article
VI


	

PARTICULAR
COVENANTS OF THE COMPANY


	
 


	

Section
6.01

	


Payments of Securities.

	

30


	

Section
6.02

	


Paying Agent.

	

30


	

Section
6.03

	


To Hold Payment in Trust.

	

31


	

Section
6.04

	


Merger, Consolidation and Sale of Assets.

	

32


	

Section
6.05

	


Compliance Certificate.

	

33


	

Section
6.06

	


Conditional Waiver by Holders of Securities.

	

33


	

Section
6.07

	


Statement by Officers as to Default.

	

33


	
 

	
 

	
 


	

Article
VII


	

REMEDIES
OF TRUSTEE AND SECURITYHOLDERS


	
 


	

Section
7.01

	


Events of Default.

	

34


	

Section
7.02

	


Acceleration; Rescission and Annulment.

	

35


	

Section
7.03

	


Other Remedies.

	

37


	

Section
7.04

	


Trustee as Attorney-in-Fact.

	

38


	

Section
7.05

	


Priorities.

	

38


	

Section
7.06

	


Control by Securityholders; Waiver of Past
Defaults.

	

39


	

Section
7.07

	


Limitation on Suits.

	

39


	

Section
7.08

	


Undertaking for Costs.

	

40


	

Section
7.09

	


Remedies Cumulative.

	

40


	
 

	
 

	
 


	

Article
VIII


	

CONCERNING
THE SECURITYHOLDERS


	
 


	

Section
8.01

	


Evidence of Action of Securityholders.

	

41


	

Section
8.02

	


Proof of Execution or Holding of Securities.

	

41


	

Section
8.03

	


Persons Deemed Owners.

	

42


	

Section
8.04

	


Effect of Consents.

	

42


	
 

	
 

	
 


	

Article
IX


	

SECURITYHOLDERS’
MEETINGS


	
 


	

Section
9.01

	


Purposes of Meetings.

	

42


	

Section
9.02

	


Call of Meetings by Trustee.

	

42


	

Section
9.03

	


Call of Meetings by Company or Securityholders.

	

43


	

Section
9.04

	


Qualifications for Voting.

	

43


	

Section
9.05

	


Regulation of Meetings.

	

43


	

Section
9.06

	


Voting.

	

44


	

Section
9.07

	


No Delay of Rights by Meeting.

	

44


	
 

	
 

	
 


	

Article
X


	

REPORTS
BY THE COMPANY AND THE TRUSTEE AND


	

SECURITY
HOLDERS’ LISTS


	
 


	

Section
10.01

	


Reports by Trustee.

	

44







 


iv



 







 











	

Section
10.02

	


Reports by the Company.

	

45


	

Section
10.03

	


Security holders’ Lists.

	

45


	
 

	
 

	
 


	

Article
XI


	

CONCERNING
THE TRUSTEE


	
 


	

Section
11.01

	


Rights of Trustees; Compensation and Indemnity.

	

46


	

Section
11.02

	


Duties of Trustee.

	

48


	

Section
11.03

	


Notice of Defaults.

	

50


	

Section
11.04

	


Eligibility; Disqualification.

	

50


	

Section
11.05

	


Registration and Notice; Removal.

	

50


	

Section
11.06

	


Successor Trustee by Appointment.

	

52


	

Section
11.07

	


Successor Trustee by Merger, Conversion, Consolidation or
Succession to Business.

	

53


	

Section
11.08

	


Right to Rely on Officer’s Certificate.

	

53


	

Section
11.09

	


Appointment of Authenticating Agent.

	

53


	

Section
11.10

	


Communications by Securityholders with Other
Securityholders.

	

54


	
 

	
 

	
 


	

Article
XII


	

SATISFACTION
AND DISCHARGE; DEFEASANCE


	
 


	

Section
12.01

	


Applicability of Article.

	

55


	

Section
12.02

	


Satisfaction and Discharge of Indenture.

	

55


	

Section
12.03

	


Defeasance upon Deposit of Moneys or U.S. Government
Obligations.

	

56


	

Section
12.04

	


Repayment to Company.

	

57


	

Section
12.05

	


Indemnity for U.S. Government Obligations.

	

57


	

Section
12.06

	


Deposits to Be Held in Escrow.

	

58


	

Section
12.07

	


Application of Trust Money.

	

58


	

Section
12.08

	


Deposits of Non-U.S. Currencies.

	

59


	
 

	
 

	
 


	

Article
XIII


	

IMMUNITY
OF CERTAIN PERSONS


	
 


	

Section
13.01

	

No Personal
Liability.

	

59


	
 

	
 

	
 


	

Article
XIV


	

SUPPLEMENTAL
INDENTURES


	
 


	

Section
14.01

	


Without Consent of Securityholders.

	

59


	

Section
14.02

	


With Consent of Securityholders; Limitations.

	

61


	

Section
14.03

	


Trustee Protected.

	

62


	

Section
14.04

	


Effect of Execution of Supplemental Indenture.

	

63


	

Section
14.05

	


Notation on or Exchange of Securities.

	

63


	

Section
14.06

	


Conformity with TIA.

	

63







 


v



 







 











	

Article
XV


	

SUBORDINATION
OF SECURITIES


	
 


	

Section
15.01

	


Agreement to Subordinate.

	

63


	

Section
15.02

	


Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.

	

63


	

Section
15.03

	


No Payment on Securities in Event of Default on Senior
Indebtedness.

	

65


	

Section
15.04

	


Payments on Securities Permitted.

	

65


	

Section
15.05

	


Authorization of Securityholders to Trustee to Effect
Subordination.

	

66


	

Section
15.06

	


Notices to Trustee.

	

66


	

Section
15.07

	


Trustee as Holder of Senior Indebtedness.

	

66


	

Section
15.08

	


Modifications of Terms of Senior Indebtedness.

	

67


	

Section
15.09

	


Reliance on Judicial Order or Certificate of Liquidating
Agent.

	

67


	

Section
15.10

	


Satisfaction and Discharge; Defeasance and Covenant
Defeasance.

	

67


	

Section
15.11

	


Trustee Not Fiduciary for Holders of Senior
Indebtedness.

	

67


	
 

	
 

	
 


	

Article
XVI


	

MISCELLANEOUS
PROVISIONS


	
 


	

Section
16.01

	


Certificates and Opinions as to Conditions
Precedent.

	

67


	

Section
16.02

	


Trust Indenture Act Controls.

	

69


	

Section
16.03

	


Notices to the Company and Trustee.

	

69


	

Section
16.04

	


Notices to Securityholders; Waiver.

	

69


	

Section
16.05

	


Legal Holiday.

	

69


	

Section
16.06

	


Effects of Headings and Table of Contents.

	

69


	

Section
16.07

	


Successors and Assigns.

	

69


	

Section
16.08

	


Separability Clause.

	

69




	

Section
16.09

	


Benefits of Indenture.

	

69


	

Section
16.10

	


Counterparts Originals.

	

69


	

Section
16.11

	


Governing Law; Waiver of Trial by Jury.

	

69







 


vi



 







 







INDENTURE dated as
of __________, 20__, among TG Therapeutics, Inc., a Delaware
corporation (the “Company”), and
                            ,
as trustee (the “Trustee”).

WITNESSETH:

WHEREAS, the
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of secured or unsecured
debentures, notes, bonds or other evidences of indebtedness (the
“Securities”) in an unlimited aggregate principal
amount to be issued from time to time in one or more series as
provided in this Indenture; and

WHEREAS, all things
necessary to make this Indenture a valid and legally binding
agreement of the Company, in accordance with its terms, have been
done.

NOW, THEREFORE,
THIS INDENTURE WITNESSETH:

That, in
consideration of the premises and the purchase of the Securities by
the Holders thereof for the equal and proportionate benefit of all
of the present and future Holders of the Securities, each party
agrees and covenants as follows:

Article
I

DEFINITIONS



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

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

(b)          unless
otherwise defined in this Indenture or the context otherwise
requires, all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
and

(c)          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;

(d)          references
to “Article” or “Section” or other
subdivision herein are references to an Article, Section or other
subdivision of the Indenture, unless the context otherwise
requires.

Section
1.01         Definitions.

Unless the context
otherwise requires, the terms defined in this Section 1.01
shall for all purposes of this Indenture have the meanings
hereinafter set forth:

Affiliate:

The term
“Affiliate” with respect to any specified Person shall
mean any other Person, directly or indirectly, controlling or
controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
“control” when used with respect to any 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.


 


1



 







 










Authenticating Agent:

The term
“Authenticating Agent” shall have the meaning assigned
to it in Section 11.09.

Board of Directors

The term
“Board of Directors” shall mean the board of directors
of the Company or any committee thereof duly authorized to act on
behalf of such board.

Board Resolution:

The term
“Board Resolution” shall mean a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors (or
by a committee of the Board of Directors to the extent that any
such other committee has been authorized by the Board of Directors
to establish or approve the matters contemplated) and to be in full
force and effect on the date of such certification and delivered to
the Trustee.

Business Day:

The term
“Business Day” shall mean each day which is not a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York.

Capital Stock:

The term
“Capital Stock” of any Person shall mean any and all
shares, interests (including partnership interests), rights to
purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities
convertible into such equity.

Code:

The term
“Code” shall mean the Internal Revenue Code of 1986 as
in effect on the date hereof.

Company:

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


 


2



 







 














Company Order:

The term
“Company Order” shall mean a written order signed in
the name of the Company by the Chairman of the Board of Directors,
Chief Executive Officer, Chief Financial Officer, President,
Executive Vice President, Senior Vice President, Treasurer,
Assistant Treasurer, Controller, Assistant Controller, Secretary or
Assistant Secretary of the Company, and delivered to the
Trustee.

Corporate Trust Office:

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

Currency:

The term
“Currency” shall mean U.S. Dollars or Foreign
Currency.

Default:

The term
“Default” shall have the meaning assigned to it in
Section 11.03.

Defaulted Interest:

The term
“Defaulted Interest” shall have the same meaning
assigned to it in Section 3.08(b).

Depositary:

The term
“Depositary” shall mean, with respect to the Securities
of any series issuable in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary by the
Company pursuant to Section 3.01 until a successor Depositary shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary” shall mean or
include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person,
“Depositary” as used with respect to the Securities of
any such series shall mean the Depositary with respect to the
Securities of that series.

Designated Currency:

The term
“Designated Currency” shall have the same meaning
assigned to it in Section 3.12.

Discharged:

The term
“Discharged” shall have the meaning assigned to it in
Section 12.03.

 



3






 





Event of Default:

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

Exchange Act:

The term
“Exchange Act” shall mean the United States Securities
Exchange Act of 1934, and the rules and regulations promulgated by
the SEC thereunder and any statute successor thereto, in each case
as amended from time to time.

Exchange Rate:

The term
“Exchange Rate” shall have the meaning assigned to it
in Section 7.01.

Floating Rate Security:

The term
“Floating Rate Security” shall mean a Security that
provides for the payment of interest at a variable rate determined
periodically by reference to an interest rate index specified
pursuant to Section 3.01.

Foreign Currency:

The term
“Foreign Currency” shall mean a currency issued by the
government of any country other than the United States or a
composite currency, the value of which is determined by reference
to the values of the currencies of any group of
countries.

GAAP:

The term
“GAAP” shall mean generally accepted accounting
principles in the United States of America as in effect as of the
date of issuance of any series of Securities, including those set
forth in:

(1)         the
opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public
Accountants;

(2)         statements
and pronouncements of the Financial Accounting Standards
Board;

(3)         such
other statements by such other entity as approved by a significant
segment of the accounting profession; and

(4)         the
rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13
of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the
accounting staff of the SEC.

 



4






 





 


Global Security:

The term
“Global Security” shall mean any Security that
evidences all or part of a series of Securities, issued in
fully-registered certificated form to the Depositary for such
series in accordance with Section 3.03 and bearing the legend
prescribed in Section 3.03(g).

Holder; Holder of
Securities:

The terms
“Holder” and “Holder of Securities” are
defined under “Security holder; Holder of Securities;
Holder.”

Indebtedness:

The term
“Indebtedness” shall mean any and all obligations of a
Person for money borrowed which, in accordance with GAAP, would be
reflected on the balance sheet of such Person as a liability on the
date as of which Indebtedness is to be determined.

Indenture:

The term
“Indenture” or “this Indenture” shall mean
this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof, 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 3.01; 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 3.01, 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.

Individual Securities:

The term
“Individual Securities” shall have the meaning
specified in Section 3.01(p).



5






 





 


Interest:

The term
“interest” shall mean, unless the context otherwise
requires, interest payable on any Securities, and with respect to
an Original Issue Discount Security that by its terms bears
interest only after Maturity, interest payable after
Maturity.

Interest Payment Date:

The term
“Interest Payment Date” shall mean, with respect to any
Security, the Stated Maturity of an installment of interest on such
Security.

Mandatory Sinking Fund
Payment:

The term
“Mandatory Sinking Fund Payment” shall have the meaning
assigned to it in Section 5.01(b).

Maturity:

The term
“Maturity,” with respect to any Security, shall mean
the date on which the principal of such Security shall become due
and payable as therein and herein provided, whether by declaration,
call for redemption or otherwise.

Members:

The term
“Members” shall have the meaning assigned to it in
Section 3.03(i).

Officer’s
Certificate:

The term
“Officer’s Certificate” shall mean a certificate
signed by any of the Chairman of the Board of Directors, Chief
Executive Officer, Chief Financial Officer, President or a Vice
President, Treasurer, an Assistant Treasurer, Controller, Secretary
or an Assistant Secretary of the Company and delivered to the
Trustee. Each such certificate shall include the statements
provided for in Section 16.01 if and to the extent required by
the provisions of such Section.

Opinion of Counsel:

The term
“Opinion of Counsel” shall mean an opinion in writing
signed by legal counsel, who may be an employee of or of counsel to
the Company, or may be other counsel that meets the requirements
provided for in Section 16.01, each reasonably acceptable to
the Trustee.

Optional Sinking Fund
Payment:

The term
“Optional Sinking Fund Payment” shall have the meaning
assigned to it in Section 5.01(b).

Original Issue Discount
Security:

The term
“Original Issue Discount Security” shall mean any
Security that is issued with “original issue discount”
within the meaning of Section 1273(a) of the Code and the
regulations thereunder and any other Security designated by the
Company as issued with original issue discount for United States
federal income tax purposes.

 



6






 





 


Outstanding:

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

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

(b)          Securities
or portions thereof for which 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 or Securities
as to which the Company’s obligations have been Discharged;
provided, however, that if such Securities or portions thereof 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; and

(c)          Securities
that have been paid pursuant to Section 3.07(b) 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 a
Responsible Officer of the Trustee proof satisfactory to it that
such Securities are held by a protected 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 Securities of a series Outstanding have performed any
action hereunder, Securities owned by the Company or any other
obligor upon the Securities of such series or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such action, only
Securities of such series that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities
so owned that 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 to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon such Securities or any Affiliate of the Company or of
such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Securities of a series
have performed any action hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be
Outstanding for such purpose shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 7.02 and the principal amount of a
Security denominated in a Foreign Currency that shall be deemed to
be Outstanding for such purpose shall be the amount calculated
pursuant to Section 3.11(b).

Paying Agent:

The term
“Paying Agent” shall have the meaning assigned to it in
Section 6.02(a).



7






 







Person:

The term
“Person” shall mean an individual, a corporation, a
limited liability company, a partnership, an association, a joint
stock company, a trust, an unincorporated organization or a
government or an agency or political subdivision
thereof.

Place of Payment:

The term
“Place of Payment” shall mean, when used with respect
to the Securities of any series, the place or places where the
principal of and premium, if any, and interest on the Securities of
that series are payable as specified pursuant to
Section 3.01.

Predecessor Security:

The term
“Predecessor Security” shall mean, with respect to any
Security, 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 3.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.

Preferred Stock:

The term
“Preferred Stock”, as applied to the Capital Stock of
any Person, shall mean Capital Stock of any class or classes
(however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of
such Person, over shares of Capital Stock of any other class of
such Person.

Record Date:

The term
“Record Date” shall mean, with respect to any interest
payable on any Security on any Interest Payment Date, the close of
business on any date specified in such Security for the payment of
interest pursuant to Section 3.01.

Redemption Date:

The term
“Redemption Date” shall mean, when used with respect to
any Security to be redeemed, in whole or in part, the date fixed
for such redemption by or pursuant to this Indenture and the terms
of such Security, which, in the case of a Floating Rate Security,
unless otherwise specified pursuant to Section 3.01, shall be
an Interest Payment Date only.

Redemption Price:

The term
“Redemption Price,” when used with respect to any
Security to be redeemed, in whole or in part, shall mean the price
at which it is to be redeemed pursuant to the terms of the Security
and this Indenture.

Register:

The term
“Register” shall have the meaning assigned to it in
Section 3.05(a).

 



8






 







Registrar:

The term
“Registrar” shall have the meaning assigned to it in
Section 3.05(a).

Responsible Officers:

The term
“Responsible Officers” of the Trustee hereunder shall
mean any vice president, any assistant vice president, any trust
officer, any assistant trust officer or any other officer
associated with the corporate trust department of the Trustee
customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee
to whom such matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this
Indenture.

SEC:

The term
“SEC” shall mean the United States Securities and
Exchange Commission, as constituted from time to time.

Securities Act:

The term
“Securities Act” shall mean the United States
Securities Act of 1933 and the rules and regulations promulgated by
the SEC thereunder and any statute successor thereto, in each case
as amended from time to time.

Security:

The term
“Security” or “Securities” shall have the
meaning stated in the recitals and shall more particularly mean one
or more of the Securities duly authenticated by the Trustee and
delivered pursuant to the provisions of this
Indenture.

Security Custodian:

The term
“Security Custodian” shall mean the custodian with
respect to any Global Security appointed by the Depositary, or any
successor Person thereto, and shall initially be the Paying
Agent.

Securityholder; Holder of Securities;
Holder:

The term
“Securityholder” or “Holder of Securities”
or “Holder,” shall mean the Person in whose name
Securities shall be registered in the Register kept for that
purpose hereunder.

 



9






 







Senior Indebtedness:

The term
“Senior Indebtedness” means the principal of (and
premium, if any) and unpaid interest on (x) Indebtedness of
the Company, whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, for money borrowed other
than (a) any Indebtedness of the Company which when incurred,
and without respect to any election under Section 1111(b) of
the Federal Bankruptcy Code, was without recourse to the Company,
(b) any Indebtedness of the Company to any of its
Subsidiaries, (c) Indebtedness to any employee of the Company,
(d) any liability for taxes, (e) Trade Payables and
(f) any Indebtedness of the Company which is expressly
subordinate in right of payment to any other Indebtedness of the
Company, and (y) renewals, extensions, modifications and
refundings of any such Indebtedness. For purposes of the foregoing
and the definition of “Senior Indebtedness,” the phrase
“subordinated in right of payment” means debt
subordination only and not lien subordination, and accordingly,
(i) unsecured indebtedness shall not be deemed to be
subordinated in right of payment to secured indebtedness merely by
virtue of the fact that it is unsecured, and (ii) junior
liens, second liens and other contractual arrangements that provide
for priorities among Holders of the same or different issues of
indebtedness with respect to any collateral or the proceeds of
collateral shall not constitute subordination in right of payment.
This definition may be modified or superseded by a supplemental
indenture.

Special Record Date:

The term
“Special Record Date” shall have the meaning assigned
to it in Section 3.08(b)(i).

Stated Maturity:

The term
“Stated Maturity” when used with respect to any
Security or any installment of interest thereon, shall mean the
date specified in such Security as the fixed date on which the
principal (or any portion thereof) of or premium, if any, on such
Security or such installment of interest is due and
payable.

Subsidiary:

The term
“Subsidiary” shall mean, with respect to any Person,
any corporation, association, partnership or other business entity
of which more than 50% of the total voting power of all classes of
Capital Stock of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees is at the time
owned or controlled, directly or indirectly, by:

(1)         such
Person;

(2)         such
Person and one or more Subsidiaries of such Person; or

(3)         one
or more Subsidiaries of such Person.

Successor Company:

The term
“Successor Company” shall have the meaning assigned to
it in Section 3.06(i).

Trade Payables:

The term
“Trade Payables” means accounts payable or any other
Indebtedness or monetary obligations to trade creditors created or
assumed by the Company or any Subsidiary of the Company in the
ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities).



10






 







Trust Indenture Act; TIA:

The term
“Trust Indenture Act” or “TIA” shall mean
the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture,
except as provided in Section 14.06 and except to the extent
any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another
date.

Trustee:

The term
“Trustee” shall mean the Person named as the
“Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such with respect to
one or more series of Securities 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.

U.S. Dollars:

The term
“U.S. Dollars” shall mean such currency of the United
States as at the time of payment shall be legal tender for the
payment of public and private debts.

U.S. Government
Obligations:

The term
“U.S. Government Obligations” shall have the meaning
assigned to it in Section 12.03.

United States:

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

Article
II

FORMS
OF SECURITIES

Section
2.01         Terms
of the Securities.



(a)          The
Securities of each series shall be substantially in the form set
forth in a Company Order or in one or more indentures supplemental
hereto, and shall have 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 or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities
exchange on which any series of the Securities may be listed or of
any automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers
executing such Securities as conclusively evidenced by their
execution of such Securities.


 


11



 







 





  

(b)          The
terms and provisions of the Securities shall constitute, and are
hereby expressly made, a part of this Indenture, and, to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.

Section
2.02         Form
of Trustee’s Certificate of
Authentication.

(a)          Only
such of the Securities as shall bear thereon a certificate
substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by
manual signature, shall be valid or become obligatory for any
purpose or entitle the Holder thereof to any right or benefit under
this Indenture.

(b)          Each
Security shall be dated the date of its authentication, except that
any Global Security shall be dated as of the date specified as
contemplated in Section 3.01.

Article
III

THE
DEBT SECURITIES

Section
3.01         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 set forth in a Company Order or in one
or more indentures supplemental hereto, prior to the issuance of
Securities of any series:

(a)          the
title of the Securities of the series (which shall distinguish the
Securities of such series from the Securities of all other series,
except to the extent that additional Securities of an existing
series are being issued);

(b)          any
limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon transfer
of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 3.04, 3.06, 3.07, 4.06, or
14.05);

(c)          the
dates on which or periods during which the Securities of the series
may be issued, and the dates on, or the range of dates within,
which the principal of and premium, if any, on the Securities of
such series are or may be payable or the method by which such date
or dates shall be determined or extended;

(d)          the
rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall
be determined, whether such interest shall be payable in cash or
additional Securities of the same series or shall accrue and
increase the aggregate principal amount outstanding of such series
(including if such Securities were originally issued at a
discount), the date or dates from which such interest shall accrue,
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable,
and the Record Dates for the determination of Holders to whom
interest is payable on such Interest Payment Dates or the method by
which such date or dates shall be determined, the right, if any, to
extend or defer interest payments and the duration of such
extension or deferral;

 



12






 







(e)          if
other than U.S. Dollars, the Foreign Currency in which Securities
of the series shall be denominated or in which payment of the
principal of, premium, if any, or interest on the Securities of the
series shall be payable and any other terms concerning such
payment;

(f)          if
the amount of payment of principal of, premium, if any, or interest
on the Securities of the series may be determined with reference to
an index, formula or other method including, but not limited to, an
index based on a Currency or Currencies other than that in which
the Securities are stated to be payable, the manner in which such
amounts shall be determined;

(g)          if
the principal of, premium, if any, or interest on Securities of the
series are to be payable, at the election of the Company or a
Holder thereof, in a Currency other than that in which the
Securities are denominated or stated to be payable without such
election, the period or periods within which, and the terms and
conditions upon which, such election may be made and the time and
the manner of determining the exchange rate between the Currency in
which the Securities are denominated or payable without such
election and the Currency in which the Securities are to be paid if
such election is made;

(h)          the
place or places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee where the principal of, premium, if
any, and interest on Securities of the series shall be payable, and
where Securities of any series may be presented for registration of
transfer, exchange or conversion, and the place or places where
notices and demands to or upon the Company in respect of the
Securities of such series may be made;

(i)          the
price or prices at which, the period or periods within which or the
date or dates on which, and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that
option;

(j)          the
obligation or right, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund,
amortization or analogous provisions or at the option of a Holder
thereof and the price or prices at which, the period or periods
within which or the date or dates on which, the Currency or
Currencies in which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;

(k)          if
other than denominations of $2,000 or any integral multiple
thereof, the denominations in which Securities of the series shall
be issuable;

(l)          if
other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;

 



13






 





 


(m)          the
guarantors, if any, of the Securities of the series, and the extent
of the guarantees (including provisions relating to seniority,
subordination, and the release of the guarantors), if any, and any
additions or changes to permit or facilitate guarantees of such
Securities;

(n)          Whether
the Securities of the series are to be issued as Original Issue
Discount Securities and the amount of discount with which such
Securities may be issued;

(o)          provisions,
if any, for the defeasance of Securities of the series in whole or
in part and any addition or change in the provisions related to
satisfaction and discharge;

(p)          whether
the Securities of the series are to be issued in whole or in part
in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Global Securities, and the
terms and conditions, if any, upon which interests in such Global
Security or Global Securities may be exchanged in whole or in part
for the Individual Securities represented thereby in definitive
form registered in the name or names of Persons other than such
Depositary or a nominee or nominees thereof (“Individual
Securities”);

(q)          the
date as of which any Global Security of the series shall be dated
if other than the original issuance of the first Security of the
series to be issued;

(r)          the
form of the Securities of the series;

(s)          if
the Securities of the series are to be convertible into or
exchangeable for any securities or property of any Person
(including the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any
additions or changes, if any, to permit or facilitate such
conversion or exchange;

(t)          whether
the Securities of such series are subject to subordination and the
terms of such subordination;

(u)          any
restriction or condition on the transferability of the Securities
of such series;

(v)         any
addition or change in the provisions related to compensation and
reimbursement of the Trustee which applies to Securities of such
series;

(w)          any
addition or change in the provisions related to supplemental
indentures set forth in Sections 14.02 and 14.04 which applies to
Securities of such series;

(x)          provisions,
if any, granting special rights to Holders upon the occurrence of
specified events;

(y)          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 7.02 and any addition or change in the provisions set
forth in Article VII which applies to Securities of the
series;

 



14






 





  

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

(aa)         whether
the Securities of the series are to be secured or unsecured, and,
if secured, the terms upon which the Securities of such series
shall be secured and any other additions or changes relating to
such security; and

(bb)         any
other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of the TIA, but may modify,
amend, supplement or delete any of the terms of this Indenture with
respect to such series).

All Securities of
any one series shall be substantially identical, except as to
denomination and except as may otherwise be provided herein or set
forth in a Company Order or in one or more indentures supplemental
hereto.

Section
3.02         Denominations.
In the absence of any specification pursuant to Section 3.01
with respect to Securities of any series, the Securities of such
series shall be issuable only as Securities in denominations of any
integral multiple of $1,000, and shall be payable only in U.S.
Dollars.

Section
3.03         Execution,
Authentication, Delivery and Dating.

(a)          The
Securities shall be executed in the name and on behalf of the
Company by the manual or facsimile signature of its Chairman of the
Board of Directors, its Chief Executive Officer, President, one of
its Vice Presidents or Treasurer. If the Person whose signature is
on a Security no longer holds that office at the time the Security
is authenticated and delivered, the Security shall nevertheless be
valid.

(b)          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, if required pursuant to Section 3.01, a
supplemental indenture or Company Order setting forth the terms of
the Securities of a series. The Trustee shall thereupon
authenticate and deliver such Securities without any further action
by the Company. The Company Order shall specify the amount of
Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated.

(c)          In
authenticating the first Securities of any series and accepting the
additional responsibilities under this Indenture in relation to
such Securities the Trustee shall receive, and (subject to
Section 11.02) shall be fully protected in relying upon an
Officer’s Certificate and an Opinion of Counsel, each
prepared in accordance with Section 16.01 stating that the
conditions precedent, if any, provided for in the Indenture have
been complied with.

(d)          The
Trustee shall have the right to decline to authenticate and deliver
the Securities under this Section 3.03 if the issue of the
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.

 



15






 









(e)          Each
Security shall be dated the date of its authentication, except as
otherwise provided pursuant to Section 3.01 with respect to
the Securities of such series.

(f)          Notwithstanding
the provisions of Section 3.01 and of this Section 3.03,
if all of the Securities of any series are not to be originally
issued at the same time, then the documents required to be
delivered pursuant to this Section 3.03 must be delivered only
once prior to the authentication and delivery of the first Security
of such series;

(g)          If
the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall
execute and the Trustee shall authenticate and deliver one or more
Global Securities that (i) shall represent an aggregate amount
equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global
Securities, (ii) shall be registered, if in registered form,
in the name of the Depositary for such Global Security or Global
Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary’s instruction and (iv) shall bear a legend
substantially to the following effect:

“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY
THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER
OF THIS SECURITY FOR ALL PURPOSES.

UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE
DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY,
HAS AN INTEREST HEREIN.

TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.”

The aggregate
principal amount of each Global Security may from time to time be
increased or decreased by adjustments made on the records of the
Security Custodian, as provided in this Indenture.

 



16






 





  

(h)          Each
Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation
and at all times while it serves as such Depositary, be a clearing
agency registered under the Exchange Act and any other applicable
statute or regulation.

(i)          Members
of, or participants in, the Depositary (“Members”)
shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary or by the
Security Custodian under such Global Security, and the Depositary
may be treated by the Company, the Trustee, the Paying Agent and
the Registrar and any of their agents as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee,
the Paying Agent or the Registrar or any of their agents from
giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Members, the operation of customary practices of
the Depositary governing the exercise of the rights of an owner of
a beneficial interest in any Global Security. The Holder of a
Global Security may grant proxies and otherwise authorize any
Person, including Members and Persons that may hold interests
through Members, to take any action that a Holder is entitled to
take under this Indenture or the Securities.

(j)          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 one of
the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual or facsimile signature of an
authorized signatory of the Trustee, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.

Section
3.04         Temporary
Securities.

(a)          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 that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their
execution of such Securities. Any such temporary Security may be in
the form of one or more Global Securities, representing all or a
portion of the Outstanding Securities of such series. Every such
temporary Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as
the definitive Security or Securities in lieu of which it is
issued.

(b)          If
temporary Securities of any series are issued, the Company will
cause definitive Securities of such 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 such temporary Securities at the office or agency of
the Company in a Place of Payment for such 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 a
like principal amount of definitive Securities of the same series
of authorized denominations and of like tenor. 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.

 



17






 







(c)          Upon
any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the Individual Securities
represented thereby pursuant to this Section 3.04 or
Section 3.06, the temporary Global Security shall be endorsed
by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such temporary
Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.

Section
3.05         Registrar
and Paying Agent.

(a)          The
Company will keep, at an office or agency to be maintained by it in
a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of
transfer or of exchange, and where Securities of any series that
are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable (the “Registrar”), a
security register for the registration and the registration of
transfer or of exchange of the Securities (the registers 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 “Register”), as in this Indenture provided,
which Register shall at all reasonable times be open for inspection
by the Trustee. Such Register shall be in written form or in any
other form capable of being converted into written form within a
reasonable time. The Company may have one or more co-Registrars;
the term “Registrar” includes any
co-registrar.

(b)         
The Company shall enter into an appropriate agency agreement with
any Registrar or co-Registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the
name and address of each such agent. If the Company fails to
maintain a Registrar for any series, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant
to Section 11.01. The Company or any Affiliate thereof may act
as Registrar, co-Registrar or transfer agent.

(c)          The
Company hereby appoints the Trustee at its Corporate Trust Office
as Registrar in connection with the Securities and this Indenture,
until such time as another Person is appointed as
such.

Section
3.06         Transfer
and Exchange.

(a)          Transfer.

(i)          Upon
surrender for registration of transfer of any Security of any
series at the Registrar the Company shall execute, and the Trustee
or any Authenticating Agent shall authenticate and deliver, in the
name of the designated transferee, one or more new Securities of
the same series for like aggregate principal amount of any
authorized denomination or denominations. The transfer of any
Security shall not be valid as against the Company or the Trustee
unless registered at the Registrar at the request of the Holder, or
at the request of his, her or its attorney duly authorized in
writing.

 



18






 







(ii)         
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for the Individual
Securities represented thereby, a Global Security representing all
or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.

(b)          Exchange.

(i)          At
the option of the Holder, Securities of any series (other than a
Global Security, except as set forth below) may be exchanged for
other Securities of the same series for like aggregate principal
amount of any authorized denomination or denominations, upon
surrender of the Securities to be exchanged at the
Registrar.

(ii)         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.

(c)          Exchange
of Global Securities for Individual Securities. Except as provided
below, owners of beneficial interests in Global Securities will not
be entitled to receive Individual Securities.

(i)          Individual
Securities shall be issued to all owners of beneficial interests in
a Global Security in exchange for such interests if: (A) at
any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary
for the Securities of such series shall no longer be eligible under
Section 3.03(h) and, in each case, a successor Depositary is
not appointed by the Company within 90 days of such notice, or
(B) the Company executes and delivers to the Trustee and the
Registrar an Officer’s Certificate stating that such Global
Security shall be so exchangeable.

In connection with
the exchange of an entire Global Security for Individual Securities
pursuant to this subsection (c), such Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of Individual Securities
of such series, will authenticate and deliver to each beneficial
owner identified by the Depositary in exchange for its beneficial
interest in such Global Security, an equal aggregate principal
amount of Individual Securities of authorized
denominations.

 



19






 







(ii)         The
owner of a beneficial interest in a Global Security will be
entitled to receive an Individual Security in exchange for such
interest if an Event of Default has occurred and is continuing.
Upon receipt by the Security Custodian and Registrar of
instructions from the Holder of a Global Security directing the
Security Custodian and Registrar to (x) issue one or more
Individual Securities in the amounts specified to the owner of a
beneficial interest in such Global Security and (y) debit or
cause to be debited an equivalent amount of beneficial interest in
such Global Security, subject to the rules and regulations of the
Depositary

(A)         the
Security Custodian and Registrar shall notify the Company and the
Trustee of such instructions, identifying the owner and amount of
such beneficial interest in such Global Security;

(B)         the
Company shall promptly execute and the Trustee, upon receipt of a
Company Order for the authentication and delivery of Individual
Securities of such series, shall authenticate and deliver to such
beneficial owner Individual Securities in an equivalent amount to
such beneficial interest in such Global Security; and

(C)         the
Security Custodian and Registrar shall decrease such Global
Security by such amount in accordance with the foregoing. In the
event that the Individual Securities are not issued to each such
beneficial owner promptly after the Registrar has received a
request from the Holder of a Global Security to issue such
Individual Securities, the Company expressly acknowledges, with
respect to the right of any Holder to pursue a remedy pursuant to
Section 7.07 hereof, the right of any beneficial Holder of
Securities to pursue such remedy with respect to the portion of the
Global Security that represents such beneficial Holder’s
Securities as if such Individual Securities had been
issued.

(iii)        If
specified by the Company pursuant to Section 3.01 with respect
to a series of Securities, the Depositary for such series of
Securities may surrender a Global Security for such series of
Securities in exchange in whole or in part for Individual
Securities of such series on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without service
charge,

(A)         to
each Person specified by such Depositary a new Individual Security
or new Individual Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person’s beneficial
interest in the Global Security; and

(B)     
   to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate
principal amount of Individual Securities delivered to Holders
thereof.

 



20






 







(iv)        In
any exchange provided for in clauses (i) through (iii), the
Company will execute and the Trustee will authenticate and deliver
Individual Securities in registered form in authorized
denominations.

(v)         Upon
the exchange in full of a Global Security for Individual
Securities, such Global Security shall be canceled by the Trustee.
Individual Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such
Securities are so registered.

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

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

(f)          No
service charge will be made for any registration of transfer or
exchange of Securities. The Company or the Trustee may require
payment of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
those expressly provided in this Indenture to be made at the
Company’s own expense or without expense or charge to the
Holders.

(g)          The
Company shall not be required to (i) register, transfer or
exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a
notice of redemption of Securities of such series selected for
redemption under Section 4.03 and ending at the close of
business on the day of such transmission, or (ii) register,
transfer or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security
being redeemed in part.

(h)          Prior
to the due presentation for registration of transfer or exchange of
any Security, the Company, the Trustee, the Paying Agent, the
Registrar, any co-Registrar or any of their agents may deem and
treat the Person in whose name a Security is registered as the
absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other
writing thereon) for all purposes whatsoever, and none of the
Company, the Trustee, the Paying Agent, the Registrar, any
co-Registrar or any of their agents shall be affected by any notice
to the contrary.

 



21






 







(i)          In
case a successor Company (“Successor Company”) has
executed an indenture supplemental hereto with the Trustee pursuant
to Article XIV, any of the Securities authenticated or delivered
pursuant to such transaction may, from time to time, at the request
of the Successor Company, be exchanged for other Securities
executed in the name of the Successor Company with such changes in
phraseology and form as may be appropriate, but otherwise identical
to the Securities surrendered for such exchange and of like
principal amount; and the Trustee, upon Company Order of the
Successor Company, shall authenticate and deliver Securities as
specified in such order for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any
new name of a Successor Company pursuant to this Section 3.06
in exchange or substitution for or upon registration of transfer of
any Securities, such Successor Company, at the option of the
Holders but without expense to them, shall provide for the exchange
of all Securities at the time Outstanding for Securities
authenticated and delivered in such new name.

(j)          Each
Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder’s Security in violation
of any provision of this Indenture and/or applicable United States
federal or state securities laws.

(k)          The
Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers
between or among members of, or participants in the Depositary or
beneficial owners of interests in any Global Security) other than
to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the
express requirements hereof.

(l)          Neither
the Trustee nor any agent of the Trustee shall have any
responsibility for any actions taken or not taken by the
Depositary.

Section
3.07         Mutilated,
Destroyed, Lost and Stolen Securities.

(a)          If
(i) any mutilated Security is surrendered to the Trustee at
its Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and there is delivered to the Company and
the Trustee security or indemnity satisfactory to them to save each
of them and any Paying Agent harmless, and neither the Company nor
the Trustee receives notice that such Security has been acquired by
a protected purchaser, then the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series and of like
tenor, form, terms and principal amount, bearing a number not
contemporaneously outstanding, that neither gain nor loss in
interest shall result from such exchange or
substitution.

(b)          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 the amount
due on such Security in accordance with its terms.

 



22






 





 


(c)          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 respect thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.

(d)          Every
new Security of any series issued pursuant to this Section 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.

(e)          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
3.08         Payment
of Interest; Interest Rights Preserved.

(a)          Interest
on any Security that is payable and is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the
Person in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Record
Date for such interest notwithstanding the cancellation of such
Security upon any transfer or exchange subsequent to the Record
Date. Payment of interest on Securities shall be made at the
Corporate Trust Office (except as otherwise specified pursuant to
Section 3.01) or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Register or, in accordance with
arrangements satisfactory to the Trustee, by wire transfer to an
account designated by the Holder.

(b)          Any
interest on any Security that 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 Record Date by virtue of his,
her or its having been such a Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:

(i)          The
Company may elect to make payment of any Defaulted Interest to the
Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest (a
“Special Record Date”), 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
such Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 calendar days and not less than 10 calendar
days prior to the date of the proposed payment and not less than 10
calendar 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
mailed, first-class postage prepaid, to the Holders of such
Securities at their addresses as they appear in the Register, not
less than 10 calendar days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (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
(ii).

 



23






 







(ii)         The
Company may make payment of any Defaulted Interest on Securities 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.

(c)          Subject
to the provisions set forth herein relating to Record Dates, each
Security delivered pursuant to any provision of this Indenture in
exchange or substitution for, or upon registration of transfer of,
any other Security shall carry all the rights to interest accrued
and unpaid, and to accrue, which were carried by such other
Security.

Section
3.09         Cancellation.
Unless otherwise specified pursuant to Section 3.01 for
Securities of any series, all Securities surrendered for payment,
redemption, registration of transfer or exchange or credit against
any sinking fund or otherwise shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee for
cancellation and shall be promptly canceled by it and, if
surrendered to the Trustee, 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 that
the Company may have acquired in any manner whatsoever, 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. The Trustee shall dispose of
all canceled Securities held by it in accordance with its then
customary procedures and deliver a certificate of such disposal to
the Company upon its request therefor. The acquisition of any
Securities by the Company shall not operate as a redemption or
satisfaction of the Indebtedness represented thereby unless and
until such Securities are surrendered to the Trustee for
cancellation.

Section
3.10         Computation
of Interest. Except as otherwise specified pursuant to
Section 3.01 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.



Section
3.11         Currency
of Payments in Respect of Securities.

(a)          Except
as otherwise specified pursuant to Section 3.01 for Securities
of any series, payment of the principal of and premium, if any, and
interest on Securities of such series will be made in U.S.
Dollars.





24






 





 


(b)          For
purposes of any provision of the Indenture where the Holders of
Outstanding Securities may perform an action that requires that a
specified percentage of the Outstanding Securities of all series
perform such action and for purposes of any decision or
determination by the Trustee of amounts due and unpaid for the
principal of and premium, if any, and interest on the Securities of
all series in respect of which moneys are to be disbursed ratably,
the principal of and premium, if any, and interest on the
Outstanding Securities denominated in a Foreign Currency will be
the amount in U.S. Dollars based upon exchange rates, determined as
specified pursuant to Section 3.01 for Securities of such
series, as of the date for determining whether the Holders entitled
to perform such action have performed it or as of the date of such
decision or determination by the Trustee, as the case may
be.

(c)          Any
decision or determination to be made regarding exchange rates shall
be made by an agent appointed by the Company; provided, that such
agent shall accept such appointment in writing and the terms of
such appointment shall, in the opinion of the Company at the time
of such appointment, require such agent to make such determination
by a method consistent with the method provided pursuant to
Section 3.01 for the making of such decision or determination.
All decisions and determinations of such agent regarding exchange
rates shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Company, the Trustee
and all Holders of the Securities.

Section
3.12         Judgments.
The Company may provide pursuant to Section 3.01 for
Securities of any series that (a) the obligation, if any, of
the Company to pay the principal of, premium, if any, and interest
on the Securities of any series in a Foreign Currency or U.S.
Dollars (the “Designated Currency”) as may be specified
pursuant to Section 3.01 is of the essence and agrees that, to
the fullest extent possible under applicable law, judgments in
respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of and premium, if any,
and interest on such Securities shall, notwithstanding any payment
in any other Currency (whether pursuant to a judgment or
otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum
paid in such other Currency (after any premium and cost of
exchange) on the business day in the country of issue of the
Designated Currency or in the international banking community (in
the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in
the Designated Currency that may be so purchased for any reason
falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not
discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein,
shall continue in full force and effect.

Section
3.13         CUSIP
Numbers. The Company in issuing any Securities may use
CUSIP, ISIN or other similar numbers, if then generally in use, and
thereafter with respect to such series, the Trustee may use such
numbers in any notice of redemption or exchange with respect to
such series provided that any such notice may state that no
representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP, ISIN or other similar
numbers.

 



25






 





 


Article
IV

REDEMPTION
OF SECURITIES



Section
4.01         Applicability
of Right of Redemption. Redemption of Securities (other than
pursuant to a sinking fund, amortization or analogous provision)
permitted by the terms of any series of Securities shall be made
(except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article;
provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of
such series shall govern.



Section
4.02         Selection
of Securities to be Redeemed.

(a)          If
the Company shall at any time elect to redeem all or any portion of
the Securities of a series then Outstanding, it shall at least 45
days prior to the Redemption Date fixed by the Company (unless a
shorter period shall be satisfactory to the Trustee) notify the
Trustee of (i) such Redemption Date, (ii) the Section of
this Indenture pursuant to which the redemption shall occur,
(iii) the Redemption Price, and (iv) the principal amount
of Securities to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as the Trustee shall deem
appropriate and which may provide for the selection for redemption
of a portion of the principal amount of any Security of such
series; provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination)
for such Security. In any case where more than one Security of such
series is registered in the same name, the Trustee may treat the
aggregate principal amount so registered as if it were represented
by one Security of such series. The Trustee shall, as soon as
practicable, notify the Company in writing of the Securities and
portions of Securities so selected.



(b)          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 Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security that has been or is to be redeemed. If the Company
shall so direct, Securities registered in the name of the Company,
any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption.



Section
4.03         Notice
of Redemption.



(a)          Notice
of redemption 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, not less than 30 nor more than 60 days
prior to the Redemption Date, to the Holders of Securities of any
series to be redeemed in whole or in part pursuant to this Article,
in the manner provided in Section 16.04. Any notice so given
shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice. Failure to give such notice,
or any defect in such notice to the Holder of any Security of a
series designated for redemption, in whole or in part, shall not
affect the sufficiency of any notice of redemption with respect to
the Holder of any other Security of such series.





26






 





 


(b)          All
notices of redemption shall identify the Securities to be redeemed
(including CUSIP, ISIN or other similar numbers, if available) and
shall state:

(i)          such
election by the Company to redeem Securities of such series
pursuant to provisions contained in this Indenture or the terms of
the Securities of such series or a supplemental indenture
establishing such series, if such be the case;

(ii)         the
Redemption Date;

(iii)        the
Redemption Price;

(iv)        if
less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the Securities of such series
to be redeemed;

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

(vi)        the
Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price; and

(vii)       that
the redemption is for a sinking fund, if such is the
case;

Section
4.04         Deposit
of Redemption Price. On or prior to 11:00 a.m., New York
City time, on the Redemption Date for any Securities, 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 6.03) an amount of money in the
Currency in which such Securities are denominated (except as
provided pursuant to Section 3.01) sufficient to pay the
Redemption Price of such Securities or any portions thereof that
are to be redeemed on that date.

Section
4.05         Securities
Payable on Redemption Date. Notice of redemption having been
given as aforesaid, any Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price and
from and after such date (unless the Company shall Default in the
payment of the Redemption Price) 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; provided, however, that (unless
otherwise provided pursuant to Section 3.01) installments of
interest that have a Stated Maturity on or prior to the Redemption
Date for such Securities shall be payable according to the terms of
such Securities and the provisions of
Section 3.08.

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

 



27






 





  

Section
4.06         Securities
Redeemed in Part. Any Security that is to be redeemed only
in part shall be surrendered at the Corporate Trust Office or such
other office or agency of the Company as is specified pursuant to
Section 3.01 with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Registrar and the
Trustee duly executed by the Holder thereof or his, her 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, of like tenor and form, 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; except that if a Global
Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such
Global Security, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of
the principal of the Global Security so surrendered. In the case of
a Security providing appropriate space for such notation, at the
option of the Holder thereof, the Trustee, in lieu of delivering a
new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion
thereof.

Article
V

SINKING
FUNDS

Section
5.01         Applicability
of Sinking Fund.

(a)          Redemption
of Securities permitted or required pursuant to a sinking fund for
the retirement of Securities of a series by the terms of such
series of Securities shall be made in accordance with such terms of
such series of Securities and this Article, except as otherwise
specified pursuant to Section 3.01 for Securities of such
series, provided, however, that if any such terms of a series of
Securities shall conflict with any provision of this Article, the
terms of such series shall govern.

(b)          The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
“Mandatory Sinking Fund Payment,” and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an
“Optional Sinking Fund Payment.” If provided for by the
terms of Securities of any series, the cash amount of any Mandatory
Sinking Fund Payment may be subject to reduction as provided in
Section 5.02.

Section
5.02         Mandatory
Sinking Fund Obligation. The Company may, at its option,
satisfy any Mandatory Sinking Fund Payment obligation, in whole or
in part, with respect to a particular series of Securities by
(a) delivering to the Trustee Securities of such series in
transferable form theretofore purchased or otherwise acquired by
the Company or redeemed at the election of the Company pursuant to
Section 4.03 or (b) receiving credit for Securities of
such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee. The Trustee shall credit
such Mandatory Sinking Fund Payment obligation with an amount equal
to the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect to so satisfy any Mandatory Sinking Fund
Payment obligation, it shall deliver to the Trustee not less than
45 days prior to the relevant sinking fund payment date an
Officer’s Certificate, which shall designate the Securities
(and portions thereof, if any) so delivered or credited and which
shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure
of the Company, at or before the time so required, to give such
notice and deliver such Securities the Mandatory Sinking Fund
Payment obligation shall be paid entirely in moneys.

 



28






 





  

Section
5.03         Optional
Redemption at Sinking Fund Redemption Price. In addition to
the sinking fund requirements of Section 5.02, to the extent,
if any, provided for by the terms of a particular series of
Securities, the Company may, at its option, make an Optional
Sinking Fund Payment with respect to such Securities. Unless
otherwise provided by such terms, (a) to the extent that the
right of the Company to make such Optional Sinking Fund Payment
shall not be exercised in any year, it shall not be cumulative or
carried forward to any subsequent year, and (b) such optional
payment shall operate to reduce the amount of any Mandatory Sinking
Fund Payment obligation as to Securities of the same series. If the
Company intends to exercise its right to make such optional payment
in any year it shall deliver to the Trustee not less than 45 days
prior to the relevant sinking fund payment date an Officer’s
Certificate stating that the Company will exercise such optional
right, and specifying the amount which the Company will pay on or
before the next succeeding sinking fund payment date. Such
Officer’s Certificate shall also state that no Event of
Default has occurred and is continuing.

Section
5.04         Application
of Sinking Fund Payment.

(a)          If
the sinking fund payment or payments made in funds pursuant to
either Section 5.02 or 5.03 with respect to a particular
series of Securities plus any unused balance of any preceding
sinking fund payments made in funds with respect to such series
shall exceed $50,000 (or a lesser sum if the Company shall so
request, or such equivalent sum for Securities denominated other
than in U.S. Dollars), it shall be applied by the Trustee on the
sinking fund payment date next following the date of such payment,
unless the date of such payment shall be a sinking fund payment
date, in which case such payment shall be applied on such sinking
fund payment date, to the redemption of Securities of such series
at the redemption price specified pursuant to Section 4.03(b).
The Trustee shall select, in the manner provided in
Section 4.02, for redemption on such sinking fund payment
date, a sufficient principal amount of Securities of such series to
absorb said funds, as nearly as may be, and shall, at the expense
and in the name of the Company, thereupon cause notice of
redemption of the Securities to be given in substantially the
manner provided in Section 4.03(a) for the redemption of
Securities in part at the option of the Company, except that the
notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so
applied by the Trustee to the redemption of Securities of such
series shall be added to the next sinking fund payment received in
funds by the Trustee and, together with such payment, shall be
applied in accordance with the provisions of this
Section 5.04. Any and all sinking fund moneys held by the
Trustee on the last sinking fund payment date with respect to
Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be
applied by the Trustee to the payment of the principal of the
Securities of such series at Maturity.

 



29






 





  

(b)          On
or prior to each sinking fund payment date, the Company shall pay
to the Trustee a sum equal to all interest accrued to but not
including the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date pursuant to this
Section 5.04.

(c)          The
Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund during the continuance of a
Default in payment of interest on any Securities of such series or
of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) of which a Responsible Officer
of the Trustee has actual knowledge, except that if the notice of
redemption of any Securities of such series shall theretofore have
been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Securities if funds sufficient for that purpose
shall be deposited with the Trustee in accordance with the terms of
this Article. Except as aforesaid, any moneys in the sinking fund
at the time any such Default or Event of Default shall occur and
any moneys thereafter paid into the sinking fund shall, during the
continuance of such Default or Event of Default, be held as
security for the payment of all the Securities of such series;
provided, however, that in case such Default or Event of Default
shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date
on which such moneys are required to be applied pursuant to the
provisions of this Section 5.04.

Article
VI

PARTICULAR
COVENANTS OF THE COMPANY



The Company hereby
covenants and agrees as follows:

Section
6.01        Payments of Securities. The
Company will duly and punctually pay the principal of and premium,
if any, on each series of Securities, and the interest which shall
have accrued thereon, at the dates and place and in the manner
provided in the Securities and in this Indenture.

Section
6.02         Paying
Agent.

(a)          The
Company will maintain in each Place of Payment for any series of
Securities, if any, an office or agency where Securities may be
presented or surrendered for payment, where Securities of such
series may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served (the “Paying
Agent”). 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 Paying Agent to receive all presentations, surrenders, notices
and demands.

 



30






 





 

(b)          The
Company may also from time to time designate different or
additional offices or agencies where the Securities of any series
may be presented or surrendered for any or all such purposes (in or
outside of such Place of Payment), and may from time to time
rescind any such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such
additional designation or rescission of designation and of any
change in the location of any such different or additional office
or agency. The Company shall enter into an appropriate agency
agreement with any Paying Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the
name and address of each such agent. The Company or any Affiliate
thereof may act as Paying Agent.

Section
6.03         To
Hold Payment in Trust.

(a)          If
the Company or an Affiliate thereof shall at any time act as Paying
Agent with respect to any series of Securities, then, on or before
the date on which the principal of and premium, if any, or interest
on any of the Securities of that series by their terms or as a
result of the calling thereof for redemption shall become payable,
the Company or such Affiliate will segregate and hold in trust for
the benefit of the Holders of such Securities or the Trustee a sum
sufficient to pay such principal and premium, if any, or interest
which shall have so become payable until such sums shall be paid to
such Holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that regard.
Upon any proceeding under any federal bankruptcy laws with respect
to the Company or any Affiliate thereof, if the Company or such
Affiliate is then acting as Paying Agent, the Trustee shall replace
the Company or such Affiliate as Paying Agent.

(b)          If
the Company shall appoint, and at the time have, a Paying Agent for
the payment of the principal of and premium, if any, or interest on
any series of Securities, then prior to 11:00 a.m., New York City
time, on the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become
payable as aforesaid, whether by their terms or as a result of the
calling thereof for redemption, the Company will deposit with such
Paying Agent a sum sufficient to pay such principal and premium, if
any, or interest, such sum to be held in trust for the benefit of
the Holders of such Securities or the Trustee, and (unless such
Paying Agent is the Trustee), the Company or any other obligor of
such Securities will promptly notify the Trustee of its payment or
failure to make such payment.

(c)          If
the Paying Agent shall be other than the Trustee, the Company will
cause such Paying Agent 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 6.03, that such
Paying Agent shall:

(i)          hold
all moneys held by it for the payment of the principal of and
premium, if any, or interest on the Securities of that series in
trust for the benefit of the Holders of such Securities until such
sums shall be paid to such Holders or otherwise disposed of as
herein provided;

(ii)         give
to the Trustee notice of any Default by the Company or any other
obligor upon the Securities of that series in the making of any
payment of the principal of and premium, if any, or interest on the
Securities of that series; and

 



31






 





 


(iii)        at
any time during the continuance of any such Default, upon the
written request of the Trustee, pay to the Trustee all sums so held
in trust by such Paying Agent.

(d)          Anything
in this Section 6.03 to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a release,
satisfaction or discharge of this Indenture or for any other
reason, pay or cause to be paid to the Trustee all sums held in
trust by the Company or by any Paying Agent other than the Trustee
as required by this Section 6.03, 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.

(e)          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 and
premium, if any, or interest on any Security of any series and
remaining unclaimed for two years after such principal and premium,
if any, or interest has become due and payable shall be paid to the
Company upon Company Order along with any interest that has
accumulated thereon as a result of such money being invested at the
direction of the Company, 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 of such amounts without interest thereon, 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 The
City of New York, 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
6.04         Merger,
Consolidation and Sale of Assets. Except as otherwise
provided as contemplated by Section 3.01 with respect to any
series of Securities:  

(a)          The
Company will not consolidate with any other entity or accept a
merger of any other entity into the Company or permit the Company
to be merged into any other entity, or sell other than for cash or
lease all or substantially all its assets to another entity, or
purchase all or substantially all the assets of another entity,
unless (i) either the Company shall be the continuing entity,
or the successor, transferee or lessee entity (if other than the
Company) shall expressly assume, by indenture supplemental hereto,
executed and delivered by such entity prior to or simultaneously
with such consolidation, merger, sale or lease, the due and
punctual payment of the principal of and interest and premium, if
any, on all the Securities, according to their tenor, and the due
and punctual performance and observance of all other obligations to
the Holders and the Trustee under this Indenture or under the
Securities to be performed or observed by the Company;
(ii) immediately after such consolidation, merger, sale, lease
or purchase the Company or the successor, transferee or lessee
entity (if other than the Company) would not be in Default in the
performance of any covenant or condition of this Indenture; and
(iii) either the Company or the resulting surviving or
transferee Person delivers to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that the
consolidation, merger or sale and the supplemental indenture comply
with the Indenture. A purchase by a Subsidiary of all or
substantially all of the assets of another entity shall not be
deemed to be a purchase of such assets by the Company.

 



32






 





  

(b)          Upon
any consolidation with or merger into any other entity, or any sale
other than for cash, or any conveyance or lease of all or
substantially all of the assets of the Company in accordance with
this Section 6.04, the successor entity formed by such
consolidation or into or with which the Company is merged or to
which the Company is sold 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 entity had been named as
the Company herein, and thereafter, except in the case of a lease,
the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Securities, and from time to
time such entity may exercise each and every right and power of the
Company under this Indenture, in the name of the Company, or in its
own name; and any act or proceeding by any provision of this
Indenture required or permitted to be done by the Board of
Directors or any officer of the Company may be done with like force
and effect by the like board or officer of any entity that shall at
the time be the successor of the Company hereunder. In the event of
any such sale or conveyance, but not any such lease, the Company
(or any successor entity which shall theretofore have become such
in the manner described in this Section 6.04) shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may thereupon be dissolved and
liquidated.

Section
6.05         Compliance
Certificate. Except as otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, the
Company shall furnish to the Trustee annually, within 120 days
after the end of each fiscal year, a brief certificate from the
principal executive officer, principal financial officer, principal
accounting officer or vice president and treasurer as to his or her
knowledge of the Company’s compliance with all conditions and
covenants under this Indenture (which compliance shall be
determined without regard to any period of grace or requirement of
notice provided under this Indenture) and, in the event of any
Default, specifying each such Default and the nature and status
thereof of which such person may have knowledge. Such certificates
need not comply with Section 16.01 of this Indenture. The
Company shall comply with TIA Section 314(a)(4).

Section
6.06         Conditional
Waiver by Holders of Securities. Anything in this Indenture
to the contrary notwithstanding, the Company may fail or omit in
any particular instance to comply with a covenant or condition set
forth herein with respect to any series of Securities if the
Company shall have obtained and filed with the Trustee, prior to
the time of such failure or omission, evidence (as provided in
Article VIII) of the consent of the Holders of a majority in
aggregate principal amount of the Securities of such series at the
time Outstanding, either waiving such compliance in such instance
or generally waiving compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, or impair any
right consequent thereon and, until such waiver shall have become
effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain
in full force and effect.

Section
6.07         Statement
by Officers as to Default. The Company shall deliver to the
Trustee as soon as possible and in any event within 30 days after
the Company becomes aware of the occurrence of any Event of Default
or an event which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default, an Officer’s
Certificate setting forth the details of such Event of Default or
Default and the action which the Company proposes to take with
respect thereto.

 



33






 





  

Article
VII

REMEDIES
OF TRUSTEE AND SECURITYHOLDERS



Section
7.01         Events
of Default. Except where otherwise indicated by the context
or where the term is otherwise defined for a specific purpose, the
term “Event of Default” as used in this Indenture with
respect to Securities of any series shall mean one of the following
described events unless it is either inapplicable to a particular
series or it is specifically deleted or modified in the manner
contemplated in Section 3.01:

(a)          the
failure of the Company to pay any installment of interest on any
Security of such series when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30
days;

(b)          the
failure of the Company to pay the principal of (and premium, if
any, on) any Security of such series, when and as the same shall
become payable, whether at Maturity as therein expressed, by call
for redemption (otherwise than pursuant to a sinking fund), by
declaration as authorized by this Indenture or
otherwise;

(c)          the
failure of the Company to pay a sinking fund installment, if any,
when and as the same shall become payable by the terms of a
Security of such series, which failure shall have continued
unremedied for a period of 30 days;

(d)          the
failure of the Company, subject to the provisions of
Section 6.06, to perform any covenants or agreements contained
in this Indenture (including any indenture supplemental hereto
pursuant to which the Securities of such series were issued as
contemplated by Section 3.01) (other than a covenant or
agreement which has been expressly included in this Indenture
solely for the benefit of a series of Securities other than that
series and other than a covenant or agreement a default in the
performance of which is elsewhere in this Section 7.01
specifically addressed), which failure shall not have been
remedied, or without provision deemed to be adequate for the
remedying thereof having been made, for a period of 90 days after
written notice shall have been given to the Company by the Trustee
or shall have been given to the Company and the Trustee by Holders
of 25% or more in aggregate principal amount of the Securities of
such series then Outstanding, specifying such failure, requiring
the Company to remedy the same and stating that such notice is a
“Notice of Default” hereunder;

(e)          the
entry by a court having jurisdiction in the premises of a decree or
order for relief in respect of the Company in an involuntary case
under the federal bankruptcy laws, as now or hereafter constituted,
or any other applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or of substantially all the
property of the Company or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days;

 



34






 





  

(f)          the
commencement by the Company of a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Company to
the entry of an order for relief in an involuntary case under any
such law, or the consent by the Company to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian or sequestrator (or similar official) of the Company or
of substantially all the property of the Company 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 action; or

(g)          the
occurrence of any other Event of Default with respect to Securities
of such series as provided in Section 3.01;

provided, however,
that no event described in clause (d) or (other than with
respect to a payment default) (g) above shall constitute an
Event of Default hereunder until a Responsible Officer of the
Trustee’s has actual knowledge thereof or until a written
notice of any such event is received by the Trustee at the
Corporate Trust Office, and such notice refers to the facts
underlying such event, the Securities generally, the Company and
the Indenture.

Notwithstanding the
foregoing provisions of this Section 7.01, if the principal or
any premium or interest on any Security is payable in a Currency
other than the Currency of the United States and such Currency is
not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in
the Currency of the United States in an amount equal to the
Currency of the United States equivalent of the amount payable in
such other Currency, as determined by the Company’s agent in
accordance with Section 3.11(c) hereof by reference to the
noon buying rate in The City of New York for cable transfers for
such Currency (“Exchange Rate”), as such Exchange Rate
is reported or otherwise made available by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this
Section 7.01, any payment made under such circumstances in the
Currency of the United States where the required payment is in a
Currency other than the Currency of the United States will not
constitute an Event of Default under this Indenture.

Section
7.02         Acceleration;
Rescission and Annulment.

(a)          Except
as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, if any one or more of the
above-described Events of Default (other than an Event of Default
specified in Section 7.01(e) or 7.01(f)) shall happen with
respect to Securities of any series at the time Outstanding, then,
and in each and every such case, during the continuance of any such
Event of Default, the Trustee or the Holders of 25% or more in
principal amount of the Securities of such series then Outstanding
may declare the principal (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of and all
accrued but unpaid interest on all the Securities of such series
then Outstanding to be due and payable immediately by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 7.01(e) or 7.01(f) occurs and is
continuing, then in every such case, the principal amount of all of
the Securities of that series then Outstanding shall automatically,
and without any declaration or any other action on the part of the
Trustee or any Holder, become due and payable immediately. Upon
payment of such amounts in the Currency in which such Securities
are denominated (subject to Section 7.01 and except as
otherwise provided pursuant to Section 3.01), all obligations
of the Company in respect of the payment of principal of and
interest on the Securities of such series shall
terminate.

 



35






 





 


(b)          The
provisions of Section 7.02(a), however, are subject to the
condition that, at any time after the principal of all the
Securities of such series, to which any one or more of the
above-described Events of Default is applicable, shall have been so
declared to be due and payable, and before a judgment or decree for
payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Event of Default giving
rise to such declaration of acceleration shall, without further
act, be deemed to have been waived, and such declaration and its
consequences shall, without further act, be deemed to have been
rescinded and annulled, if:

(i)          the
Company has paid or deposited with the Trustee or Paying Agent a
sum in the Currency in which such Securities are denominated
(subject to Section 7.01 and except as otherwise provided
pursuant to Section 3.01) sufficient to pay

(A)         all
amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a) (provided, however, that all sums
payable under this clause (A) shall be paid in U.S.
Dollars);

(B)         all
arrears of interest, if any, upon all the Securities of such series
(with interest, to the extent that interest thereon shall be
legally enforceable, on any overdue installment of interest at the
rate borne by such Securities at the rate or rates prescribed
therefor in such Securities); and

(C)         the
principal of and premium, if any, on any Securities of such series
that have become due otherwise than by such declaration of
acceleration and interest thereon;

(ii)         every
other Default and Event of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 7.06.

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





36






 





 


(d)          For
all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has
been rescinded and annulled, the principal amount of such Original
Issue Discount Securities shall be deemed, for all purposes
hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of
such portion of the principal thereof as shall be due and payable
as a result of such acceleration, together with interest, if any,
thereon and all other amounts owing thereunder, shall constitute
payment in full of such Original Issue Discount
Securities.

Section
7.03         Other
Remedies. If the Company shall fail for a period of 30 days
to pay any installment of interest on the Securities of any series
or shall fail to pay the principal of and premium, if any, on any
of the Securities of such series when and as the same shall become
due and payable, whether at Maturity, or by call for redemption
(other than pursuant to the sinking fund), by declaration as
authorized by this Indenture, or otherwise, or shall fail for a
period of 30 days to make any required sinking fund payment as to a
series of Securities, then, upon demand of the Trustee, the Company
will pay to the Paying Agent for the benefit of the Holders of
Securities of such series then Outstanding the whole amount which
then shall have become due and payable on all the Securities of
such series, with interest on the overdue principal and premium, if
any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the
Securities of such series, and all amounts owing the Trustee and
any predecessor trustee hereunder under
Section 11.01(a).

In case the Company
shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at
law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree
against the Company or any other obligor upon the Securities of
such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor
upon the Securities of such series, wherever situated, in the
manner provided by law. Every recovery of judgment in any such
action or other proceeding, subject to the payment to the Trustee
of all amounts owing the Trustee and any predecessor trustee
hereunder under Section 11.01(a), shall be for the ratable
benefit of the Holders of such series of Securities which shall be
the subject of such action or proceeding. All rights of action upon
or under any of the Securities or this Indenture may be enforced by
the Trustee without the possession of any of the Securities and
without the production of any thereof at any trial or any
proceeding relative thereto.

 



37






 







Section
7.04        Trustee as Attorney-in-Fact.
The Trustee is hereby appointed, and each and every Holder of the
Securities, by receiving and holding the same, shall be
conclusively deemed to have appointed the Trustee, the true and
lawful attorney-in-fact of such Holder, with authority to make or
file (whether or not the Company shall be in Default in respect of
the payment of the principal of, or interest on, any of the
Securities, and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest), in its own name and as trustee of an express trust or
otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other
judicial proceeding relative to the Company or any other obligor
upon the Securities or to their respective creditors or property,
any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof,
as may be necessary or advisable in order to have the claims of the
Trustee and any predecessor trustee hereunder (including any claims
for reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and its counsel) and of the Holders of
the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any
such claim, and to execute and deliver any and all other papers and
documents and to do and perform any and all other acts and things,
as it may deem necessary or advisable in order to enforce in any
such proceeding any of the claims of the Trustee and any
predecessor trustee hereunder and of any of such Holders in respect
of any of the Securities; and any receiver, assignee, trustee,
custodian, liquidator, debtor or a similar official in any such
proceeding is hereby authorized, and each and every taker or Holder
of the Securities, by receiving and holding the same, shall be
conclusively deemed to have authorized any such receiver, assignee,
trustee, custodian, liquidator, debtor or a similar official to
make any such payment or delivery only to or on the order of the
Trustee, and to pay to the Trustee any amount due it and any
predecessor trustee hereunder for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
its counsel and any other amounts due under Section 11.01(a);
provided, however, that nothing herein contained shall be deemed to
authorize or empower the Trustee to consent to or accept or adopt,
on behalf of any Holder of Securities, any plan of reorganization,
composition, adjustment or other similar arrangement affecting the
Securities or the rights of any Holder thereof, or to authorize or
empower the Trustee to vote in respect of the claim of any Holder
of any Securities in any such proceeding.

Section
7.05        Priorities. Any moneys or
properties collected by the Trustee with respect to a series of
Securities under this Article VII shall be applied in the order
following, at the date or dates fixed by the Trustee for the
distribution of such moneys or properties and, in the case of the
distribution of such moneys or properties on account of the
Securities of any series, upon presentation of the Securities of
such series, and stamping thereon the payment, if only partially
paid, and upon surrender thereof, if fully paid:

First: To the
payment of all amounts due to the Trustee and any predecessor
trustee hereunder under Section 11.01(a).

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

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

 



38






 





  

Any surplus then
remaining shall be paid to the Company or as directed by a court of
competent jurisdiction.

Section
7.06         Control
by Securityholders; Waiver of Past Defaults. The Holders of
a majority in principal amount of the Securities of any series at
the time Outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred
upon the Trustee with respect to the Securities of such series,
provided, however, that, subject to the provisions of Sections
11.01 and 11.02, the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken or
would be unduly prejudicial to Holders not joining in such
direction or would involve the Trustee in personal liability. Prior
to any declaration accelerating the Maturity of the Securities of
any series, the Holders of a majority in aggregate principal amount
of such series of Securities at the time Outstanding may on behalf
of the Holders of all of the Securities of such series waive any
past Default or Event of Default hereunder and its consequences
except a Default in the payment of interest or any premium on or
the principal of the Securities of such series. Upon any such
waiver the Company, the Trustee and the Holders of the Securities
of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
right consequent thereon. Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this
Section 7.06, said Default or Event of Default shall for all
purposes of the Securities of such series and this Indenture be
deemed to have been cured and to be not continuing.

Section
7.07         Limitation
on Suits. No Holder of any Security of any series shall have
any right to institute any action, suit or proceeding at law or in
equity for the execution of any trust hereunder or for the
appointment of a receiver or for any other remedy hereunder, in
each case with respect to an Event of Default with respect to such
series of Securities, unless such Holder previously shall have
given to the Trustee written notice of one or more of the Events of
Default herein specified with respect to such series of Securities,
and unless also the Holders of 25% in principal amount of the
Securities of such series then Outstanding shall have requested the
Trustee in writing to take action in respect of the matter
complained of, and unless also there shall have been offered to the
Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for 60 days after receipt of such notification,
request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; and such
notification, request and offer of indemnity are hereby declared in
every such case to be conditions precedent to any such action, suit
or proceeding by any Holder of any Security of such series; it
being understood and intended that no one or more of the Holders of
Securities of such series shall have any right in any manner
whatsoever by his, her, its or their action to enforce any right
hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted,
had and maintained in the manner herein provided and for the equal
benefit of all Holders of the Outstanding Securities of such
series; provided, however, that nothing in this Indenture or in the
Securities of such series shall affect or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on the Securities of
such series to the respective Holders of such Securities at the
respective due dates in such Securities stated, or affect or impair
the right, which is also absolute and unconditional, of such
Holders to institute suit to enforce the payment
thereof.





39






 





 


Section
7.08         Undertaking
for Costs. All parties to this Indenture and each Holder of
any Security, by such Holder’s acceptance thereof, shall be
deemed to have agreed that any court may in its discretion require,
in any action, suit or proceeding for the enforcement of any right
or remedy under this Indenture, or in any action, suit or
proceeding against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such action,
suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in
such action, suit or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; provided, however, that the provisions of this
Section 7.08 shall not apply to any action, suit or proceeding
instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more Holders of Securities holding in the
aggregate more than 10% in principal amount of the Securities of
any series Outstanding, or to any action, suit or proceeding
instituted by any Holder of Securities of any series for the
enforcement of the payment of the principal of or premium, if any,
or the interest on, any of the Securities of such series, on or
after the respective due dates expressed in such
Securities.



Section
7.09         Remedies
Cumulative. No remedy herein conferred upon or reserved to
the Trustee or to the Holders of Securities of any series is
intended to be exclusive of any other remedy or remedies, and each
and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. No delay or omission of the Trustee
or of any Holder of the Securities of any series to exercise any
right or power accruing upon any Default or Event of Default shall
impair any such right or power or shall be construed to be a waiver
of any such Default or Event of Default or an acquiescence therein;
and every power and remedy given by this Article VII to the Trustee
and to the Holders of Securities of any series, respectively, may
be exercised from time to time and as often as may be deemed
expedient by the Trustee or by the Holders of Securities of such
series, as the case may be. In case the Trustee or any Holder of
Securities of any series shall have proceeded to enforce any right
under this Indenture and the proceedings for the enforcement
thereof shall have been discontinued or abandoned because of waiver
or for any other reason or shall have been adjudicated adversely to
the Trustee or to such Holder of Securities, then and in every such
case the Company, the Trustee and the Holders of the Securities of
such series shall severally and respectively be restored to their
former positions and rights hereunder, and thereafter all rights,
remedies and powers of the Trustee and the Holders of the
Securities of such series shall continue as though no such
proceedings had been taken, except as to any matters so waived or
adjudicated.

 



40






 







Article
VIII

CONCERNING THE SECURITYHOLDERS



Section
8.01        Evidence of Action of
Securityholders. Whenever in this Indenture it is provided
that the Holders of a specified percentage or a majority in
aggregate principal amount of the Securities or of any series of
Securities may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking
any such action the Holders of such specified percentage or
majority have joined therein may be evidenced by (a) any
instrument or any number of instruments of similar tenor executed
by Securityholders in person, by an agent or by a proxy appointed
in writing, including through an electronic system for tabulating
consents operated by the Depositary for such series or otherwise
(such action becoming effective, except as herein otherwise
expressly provided, when such instruments or evidence of electronic
consents are delivered to the Trustee and, where it is hereby
expressly required, to the Company), or (b) by the record of
the Holders of Securities voting in favor thereof at any meeting of
Securityholders duly called and held in accordance with the
provisions of Article IX, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Securityholders.

Section
8.02         Proof
of Execution or Holding of Securities. Proof of the
execution of any instrument by a Securityholder or his, her or its
agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following
manner:

(a)          The
fact and date of the execution by any Person of any such instrument
may be proved (i) by the certificate of any notary public or
other officer in any jurisdiction who, by the laws thereof, has
power to take acknowledgments or proof of deeds to be recorded
within such jurisdiction, that the Person who signed such
instrument did acknowledge before such notary public or other
officer the execution thereof, or (ii) by the affidavit of a
witness of such execution sworn to before any such notary or other
officer. Where such execution is by a Person acting in other than
his or her individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his or her
authority.

(b)          The
ownership of Securities of any series shall be proved by the
Register of such Securities or by a certificate of the Registrar
for such series.

(c)          The
record of any Holders’ meeting shall be proved in the manner
provided in Section 9.06.

(d)          The
Trustee may require such additional proof of any matter referred to
in this Section 8.02 as it shall deem appropriate or
necessary, so long as the request is a reasonable one.

(e)          If
the Company shall solicit from the Holders of Securities of any
series any action, the Company may, at its option fix in advance a
record date for the determination of Holders of Securities entitled
to take such action, but the Company shall have no obligation to do
so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be
sought or given before or after the record date, but only the
Holders of Securities of record at the close of business on such
record date shall be deemed to be Holders of Securities for the
purpose of determining whether Holders of the requisite proportion
of Outstanding Securities of such series have authorized or agreed
or consented to such action, and for that purpose the Outstanding
Securities of such series shall be computed as of such record
date.

 



41






 





  

Section
8.03         Persons
Deemed Owners.

(a)          The
Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Section 3.08) interest, if any, 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. All
payments made to any Holder, or upon his, her or its order, shall
be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such
Security.

(b)          None
of the Company, the Trustee, any Paying Agent or the Registrar will
have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.

Section
8.04        Effect of Consents. After an
amendment, supplement, waiver or other action becomes effective as
to any series of Securities, a consent to it by a Holder of such
series of Securities is a continuing consent conclusive and binding
upon such Holder and every subsequent Holder of the same Securities
or portion thereof, and of any Security issued upon the transfer
thereof or in exchange therefor or in place thereof, even if
notation of the consent is not made on any such Security. An
amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.

Article
IX

SECURITYHOLDERS’ MEETINGS



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

(a)          to
give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any
Default or Event of Default hereunder and its consequences, or to
take any other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article VIII;

(b)          to
remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article XI;

(c)          to
consent to the execution of an Indenture or of indentures
supplemental hereto pursuant to the provisions of
Section 14.02; or

(d)          to
take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the
Securities of any one or more or all series, as the case may be,
under any other provision of this Indenture or under applicable
law.

Section
9.02         Call
of Meetings by Trustee. The Trustee may at any time call a
meeting of all Securityholders of all series that may be affected
by the action proposed to be taken, to take any action specified in
Section 9.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of the
Securityholders of a series, setting forth the time and the place
of such meeting and in general terms the action proposed to be
taken at such meeting, shall be mailed to Holders of Securities of
such series at their addresses as they shall appear on the Register
of the Company. Such notice shall be mailed not less than 20 nor
more than 90 days prior to the date fixed for the
meeting.

 



42






 





  

Section
9.03         Call
of Meetings by Company or Securityholders. In case at any
time the Company or the Holders of at least 10% in aggregate
principal amount of the Securities of a series (or of all series,
as the case may be) then Outstanding that may be affected by the
action proposed to be taken, shall have requested the Trustee to
call a meeting of Securityholders of such series (or of all
series), by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders
may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 9.01, by
mailing notice thereof as provided in
Section 9.02.



Section
9.04         Qualifications
for Voting. To be entitled to vote at any meeting of
Securityholders, a Person shall (a) be a Holder of one or more
Securities affected by the action proposed to be taken at the
meeting or (b) be a Person appointed by an instrument in
writing as proxy by a Holder of one or more such Securities. The
only Persons who shall be entitled to be present or to speak at any
meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and
its counsel.



Section
9.05         Regulation
of Meetings.



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

(b)          The
Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called
by the Company or by Securityholders as provided in
Section 9.03, in which case the Company or the Securityholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chair. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the
meeting.

(c)          At
any meeting of Securityholders of a series, each Securityholder of
such series of such Securityholder’s proxy shall be entitled
to one vote for each $1,000 principal amount of Securities of such
series Outstanding held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of
Securities of such series held by him or her or instruments in
writing as aforesaid duly designating him or her as the Person to
vote on behalf of other Securityholders. At any meeting of the
Securityholders duly called pursuant to the provisions of
Section 9.02 or 9.03 the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient
to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority
of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further
notice.

 



43






 





 


Section
9.06        Voting. The vote upon any
resolution submitted to any meeting of Securityholders of a series
shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts of the
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings
of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall show the principal amounts of
the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.

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



Section
9.07         No
Delay of Rights by Meeting. Nothing contained in this
Article IX shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Securityholders of any series or
any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders
of such series under any of the provisions of this Indenture or of
the Securities of such series.



Article
X

REPORTS BY THE COMPANY AND THE TRUSTEE AND

SECURITYHOLDERS’ LISTS

Section
10.01       Reports by
Trustee.

(a)          So
long as any Securities are outstanding, 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 therein. If
required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each anniversary following the
date of this Indenture deliver to Holders a brief report which
complies with the provisions of such
Section 313(a).

(b)          The
Trustee shall, at the time of the transmission to the Holders of
Securities of any report pursuant to the provisions of this
Section 10.01, file a copy of such report with each stock
exchange upon which the Securities are listed, if any, and also
with the SEC in respect of a Security listed and registered on a
national securities exchange, if any. The Company agrees to notify
the Trustee when, as and if the Securities become listed on any
stock exchange or any delisting thereof.

 



44






 





  

The Company will
reimburse the Trustee for all expenses incurred in the preparation
and transmission of any report pursuant to the provisions of this
Section 10.01 and of Section 10.02.

Section
10.02      Reports by the Company. The
Company shall file with the Trustee and the SEC, and transmit to
Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided in the Trust
Indenture Act; provided that, unless available on EDGAR, any such
information, documents or reports required to be filed with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 30 days after the same is filed with
the SEC; and provided further, that the filing of the reports
specified in Section 13 or 15(d) of the Exchange Act by an
entity that is the direct or indirect parent of the Company will
satisfy the requirements of this Section 10.02 so long as such
entity is an obligor or guarantor on the Securities; and provided
further that the reports of such entity will not be required to
include condensed consolidating financial information for the
Company in a footnote to the financial statements of such
entity.

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

Section
10.03       Securityholders’ Lists.
The Company covenants and agrees that it will furnish or cause to
be furnished to the Trustee:

(a)          semi-annually,
within 15 days after each Record Date, but in any event not less
frequently than semi-annually, a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders of
Securities to which such Record Date applies, as of such Record
Date, and

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

provided, however,
that so long as the Trustee shall be the Registrar, such lists
shall not be required to be furnished; and provided, further, that
the Trustee shall not be held accountable by reason of (i) the
disclosure of any information as to the names and addresses of the
Holders in accordance with the TIA Section 312, regardless of
the source from which the information was derived and
(ii) mailing any material pursuant to a request made under TIA
Section 312.

 



45






 





 

Article
XI

CONCERNING THE TRUSTEE

Section
11.01       Rights of Trustees; Compensation and
Indemnity. The Trustee accepts the trusts created by this
Indenture upon the terms and conditions hereof, including the
following, to all of which the parties hereto and the Holders from
time to time of the Securities agree:

(a)          The
Trustee shall be entitled to such compensation as the Company and
the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (including in any agent capacity
in which it acts). The compensation of the Trustee shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee promptly upon its request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its own gross
negligence, bad faith or willful misconduct.

The Company also
agrees to indemnify each of the Trustee and any predecessor Trustee
hereunder for, and to hold it harmless against, any and all loss,
liability, damage, claim, or expense including taxes (other than
taxes based on the income of the Trustee) incurred without its own
negligence, bad faith or willful misconduct, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder and the performance of its duties (including in
any agent capacity in which it acts), as well as 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, except those attributable to its gross
negligence, willful misconduct or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have one separate counsel
of its selection and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be
unreasonably withheld.

As security for the
performance of the obligations of the Company under this
Section 11.01(a), the Trustee shall have a lien upon all
property and funds held or collected by the Trustee as such, except
funds held in trust by the Trustee to pay principal of and interest
on any Securities. Notwithstanding any provisions of this Indenture
to the contrary, the obligations of the Company to compensate and
indemnify the Trustee under this Section 11.01(a) shall
survive the resignation or removal of the Trustee, the termination
of this Indenture and any satisfaction and discharge under Article
XII. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in clause (e) or
(f) of Section 7.01 occurs, the expenses (including the
reasonable charges of its counsel) and compensation for the
services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or
similar laws.

(b)          The
Trustee may execute any of the trusts or powers hereof or perform
any duties hereunder either directly or by or through its 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.

 



46






 





  

(c)          The
Trustee shall not be responsible in any manner whatsoever for the
correctness of the recitals herein or in the Securities (except its
certificates of authentication thereon) contained, all of which are
made solely by the Company; and the Trustee shall not be
responsible or accountable in any manner whatsoever for or with
respect to the validity or execution or sufficiency of this
Indenture or of the Securities (except its certificates of
authentication thereon), and the Trustee makes no representation
with respect thereto, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of any
Securities, or the proceeds of any Securities, authenticated and
delivered by the Trustee in conformity with the provisions of this
Indenture.

(d)          The
Trustee may consult with counsel of its selection, and, to the
extent permitted by Section 11.02, any Opinion of Counsel
shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by the Trustee hereunder
in good faith and in accordance with such Opinion of
Counsel.

(e)          The
Trustee, to the extent permitted by Section 11.02, may rely
upon the certificate of the Secretary or one of the Assistant
Secretaries of the Company as to the adoption of any Board
Resolution or resolution of the stockholders of the Company, and
any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by, and 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 may rely
upon, an Officer’s Certificate of the Company (unless other
evidence in respect thereof be herein specifically
prescribed).

(f)          Subject
to Section 11.04, the Trustee or any agent of the Trustee, in
its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company with
the same rights it would have had if it were not the Trustee or
such agent.

(g)          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 in writing with the
Company.

(h)          Any
action taken by the Trustee pursuant to any provision hereof at the
request or with the consent of any Person who at the time is the
Holder of any Security shall be conclusive and binding in respect
of such Security upon all future Holders thereof or of any Security
or Securities which may be issued for or in lieu thereof in whole
or in part, whether or not such Security shall have noted thereon
the fact that such request or consent had been made or
given.

(i)          Subject
to the provisions of Section 11.02, the Trustee may
conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, other evidence of indebtedness or other
paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented
by the proper party or parties.

 



47






 





 


(j)          Subject
to the provisions of Section 11.02, the Trustee shall not be
under any obligation to exercise any of the rights or powers vested
in it by this Indenture at the request, order or direction of any
of the Holders of the Securities, pursuant to any provision of this
Indenture, unless one or more of the Holders of the Securities
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which may be incurred by it therein or thereby.

(k)          Subject
to the provisions of Section 11.02, the Trustee shall not be
liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within its discretion or within
the rights or powers conferred upon it by this
Indenture.

(l)          Subject
to the provisions of Section 11.02, the Trustee shall not be
deemed to have knowledge or notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless the Holders of not less than 25% of the
Outstanding Securities notify the Trustee thereof, and such notice
references the Securities and this Indenture.

(m)         Subject
to the provisions of the first paragraph of Section 11.02, 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, may, but shall not be
required to, make 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
with the prior consent of the Company, which shall not be
unreasonably withheld, to examine the books, records and premises
of the Company.

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

Section
11.02       Duties of Trustee.

(a)          If
one or more of the Events of Default specified in Section 7.01
with respect to the Securities of any series shall have happened,
then, during the continuance thereof, the Trustee shall, with
respect to such Securities, exercise such of the rights and powers
vested in it by this Indenture, and shall use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such
person’s own affairs.

(b)          None
of the provisions of this Indenture shall be construed as relieving
the Trustee from liability for its own negligent action, negligent
failure to act, or its own willful misconduct, except that,
anything in this Indenture contained to the contrary
notwithstanding,

 



48






 





 


(i)            unless
and until an Event of Default specified in Section 7.01 with
respect to the Securities of any series shall have happened which
at the time is continuing,



(A)         the
Trustee undertakes to perform such duties and only such duties with
respect to the Securities of that series as are specifically set
out in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee, whose duties
and obligations shall be determined solely by the express
provisions of this Indenture; and



(B)         the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, in the
absence of bad faith on the part of the Trustee, upon certificates
or opinions furnished to the Trustee pursuant to the express
provisions of this Indenture; but in the case of any such
certificates or opinions which, by the provisions of this
Indenture, are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts, statements, opinions or
conclusions stated therein);



(ii)           the
Trustee shall not be liable to any Holder of Securities or to any
other Person for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and



(iii)          the
Trustee shall not be liable to any Holder of Securities or to any
other Person with respect to any action taken or omitted to be
taken by it in good faith, in accordance with the direction of
Securityholders given as provided in Section 7.06, relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee by this Indenture.



(c)          None
of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise to 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.



(d)          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 11.02.

 



49






 





 


Section
11.03       Notice of Defaults. Within 90
days after the occurrence thereof, and if known to the Trustee, the
Trustee shall give to the Holders of the Securities of a series
notice of each Default or Event of Default with respect to the
Securities of such series known to the Trustee, by transmitting
such notice to Holders at their addresses as the same shall then
appear on the Register of the Company, unless such Default shall
have been cured or waived before the giving of such notice (the
term “Default” being hereby defined to be the events
specified in Section 7.01, which are, or after notice or lapse
of time or both would become, Events of Default as defined in said
Section). Except in the case of a Default or Event of Default in
payment of the principal of, premium, if any, or interest on any of
the Securities of such series when and as the same shall become
payable, or to make any sinking fund payment as to Securities of
the same series, the Trustee shall be protected in withholding such
notice, if and so long as a Responsible Officer or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of
the Securities of such series.



Section
11.04       Eligibility;
Disqualification.

(a)          The
Trustee shall at all times satisfy the requirements of TIA
Section 310(a). The Trustee, together with its parent company,
shall have a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of
condition, and shall have a Corporate Trust Office. If at any time
the Trustee shall cease to be eligible in accordance with the
provisions of this Section 11.04, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.

(b)          The
Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA
Section 310(b)(i) any indenture or indentures under which
other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(i) are met.
If the Trustee has or shall acquire a conflicting interest within
the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions
of, the Trust Indenture Act and this Indenture. If
Section 310(b) of the Trust Indenture Act is amended any time
after the date of this Indenture to change the circumstances under
which a Trustee shall be deemed to have a conflicting interest with
respect to the Securities of any series or to change any of the
definitions in connection therewith, this Section 11.04 shall
be automatically amended to incorporate such changes.

Section
11.05       Registration and Notice;
Removal. The Trustee, or any successor to it hereafter
appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of
Securities by giving to the Company notice in writing. Such
resignation shall take effect upon the appointment of a successor
Trustee and the acceptance of such appointment by such successor
Trustee. Any Trustee hereunder may be removed with respect to any
series of Securities at any time by the filing with such Trustee
and the delivery to the Company of an instrument or instruments in
writing signed by the Holders of a majority in principal amount of
the Securities of such series then Outstanding, specifying such
removal and the date when it shall become effective.

 



50






 





  

If at any
time:

(1)         the
Trustee shall fail to comply with the provisions of TIA
Section 310(b) 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, if it is a shorter period, the period
since the initial issuance of the Securities of such series),
or

(2)         the
Trustee shall cease to be eligible under Section 11.04 and
shall fail to resign 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, if it is a shorter period, the period
since the initial issuance of the Securities of such series),
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, (i) the Company by written notice to the Trustee may
remove the Trustee and appoint a successor Trustee with respect to
all Securities, or (ii) subject to TIA Section 315(e),
any Securityholder who has been a bona fide Holder of a Security
for at least six months (or, if it is a shorter period, the period
since the initial issuance of the Securities of such series) 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.

Upon its
resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered
hereunder by such Trustee and to the payment of all reasonable
expenses incurred hereunder and all moneys then due to it
hereunder. The Trustee’s rights to indemnification provided
in Section 11.01(a) shall survive its resignation or
removal.

 



51






 





  

Section
11.06       Successor Trustee by
Appointment.

(a)          In
case at any time the Trustee shall resign, or shall be removed
(unless the Trustee shall be removed as provided in
Section 11.04(b), in which event the vacancy shall be filled
as provided in said subdivision), or shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or if a
receiver of the Trustee or of its property shall be appointed, or
if 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 with respect to the Securities of one
or more series, a successor Trustee 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
series) may be appointed by the Holders of a majority in principal
amount of the Securities of that or those series then Outstanding,
by an instrument or instruments in writing signed in duplicate by
such Holders and filed, one original thereof with the Company and
the other with the successor Trustee; but, until a successor
Trustee shall have been so appointed by the Holders of Securities
of that or those series as herein authorized, the Company, or, in
case all or substantially all the assets of the Company shall be in
the possession of one or more custodians or receivers lawfully
appointed, or of trustees in bankruptcy or reorganization
proceedings (including a trustee or trustees appointed under the
provisions of the federal bankruptcy laws, as now or hereafter
constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be,
by an instrument in writing, shall appoint a successor Trustee with
respect to the Securities of such series. Subject to the provisions
of Sections 11.04 and 11.05, upon the appointment as aforesaid of a
successor Trustee with respect to the Securities of any series, the
Trustee with respect to the Securities of such series shall cease
to be Trustee hereunder. After any such appointment other than by
the Holders of Securities of that or those series, the Person
making such appointment shall forthwith cause notice thereof to be
mailed to the Holders of Securities of such series at their
addresses as the same shall then appear on the Register of the
Company but any successor Trustee with respect to the Securities of
such series so appointed shall, immediately and without further
act, be superseded by a successor Trustee appointed by the Holders
of Securities of such series in the manner above prescribed, if
such appointment be made prior to the expiration of one year from
the date of the mailing of such notice by the Company, or by such
receivers, trustees or assignees. Each notice shall include the
name of the successor Trustee and the address of its Corporate
Trust Office.

(b)          If
any Trustee with respect to the Securities of one or more series
shall resign or be removed and a successor Trustee shall not have
been appointed by the Company or by the Holders of the Securities
of such series or, if any successor Trustee so appointed shall not
have accepted its appointment by way of notice to the Trustee, then
within 30 days after providing such notice, the resigning Trustee
at the expense of the Company may apply to any court of competent
jurisdiction for the appointment of a successor Trustee. If in any
other case a successor Trustee shall not be appointed pursuant to
the foregoing provisions of this Section 11.06 within three
months after such appointment might have been made hereunder, the
Holder of any Security of the applicable series or any retiring
Trustee at the expense of the Company may apply to any court of
competent jurisdiction to appoint a successor Trustee. Such court
may thereupon, in any such case, after such notice, if any, as such
court may deem proper and prescribe, appoint a successor
Trustee.

(c)          Any
successor Trustee appointed hereunder with respect to the
Securities of one or more series shall execute, acknowledge and
deliver to its predecessor Trustee and to the Company, or to the
receivers, trustees, assignees or court appointing it, as the case
may be, an instrument accepting such appointment hereunder, and
thereupon such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations with respect to
such series of such predecessor Trustee with like effect as if
originally named as Trustee hereunder, and such predecessor
Trustee, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to pay over, and such successor
Trustee shall be entitled to receive, all moneys and properties
held by such predecessor Trustee as Trustee hereunder, subject
nevertheless to its lien provided for in Section 11.01(a).
Nevertheless, on the written request of the Company or of the
successor Trustee or of the Holders of at least 10% in principal
amount of the Securities of such series then Outstanding, such
predecessor Trustee, upon payment of its said charges and
disbursements, shall execute and deliver an instrument transferring
to such successor Trustee upon the trusts herein expressed all the
rights, powers and trusts of such predecessor Trustee and shall
assign, transfer and deliver to the successor Trustee all moneys
and properties held by such predecessor Trustee, subject
nevertheless to its lien provided for in Section 11.01(a);
and, upon request of any such successor Trustee, the Company shall
make, execute, acknowledge and deliver any and all instruments in
writing for more fully and effectually vesting in and confirming to
such successor Trustee all such authority, rights, powers, trusts,
immunities, duties and obligations.

 



52






 





 


Section
11.07       Successor Trustee by Merger,
Conversion, Consolidation or Succession to Business. Any
Person into which the Trustee or any successor to it in the trusts
created by this Indenture shall be merged or converted, or any
Person with which it or any successor to it shall be consolidated,
or any Person resulting from any merger, conversion or
consolidation to which the Trustee or any such successor to it
shall be a party, or any Person to which the Trustee or any
successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee,
shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of
any of the parties hereto; provided that such Person shall be
otherwise qualified and eligible under this Article. In case at the
time such successor to the Trustee shall succeed to the trusts
created by this Indenture with respect to one or more series of
Securities, any of such Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor to
such Trustee may adopt the certificate of authentication of any
predecessor Trustee, and deliver such Securities so authenticated;
and in case at that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger,
conversion or consolidation.

Section
11.08      Right to Rely on Officer’s
Certificate. Subject to Section 11.02, and subject to
the provisions of Section 16.01 with respect to the
certificates required thereby, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior
to taking or suffering any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, bad faith or
willful misconduct on the part of the Trustee, be deemed to be
conclusively proved and established by an Officer’s
Certificate with respect thereto delivered to the Trustee, and such
Officer’s Certificate, in the absence of negligence, bad
faith or willful misconduct on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith
thereof.

Section
11.09      Appointment of Authenticating
Agent. The Trustee may appoint an agent (the
“Authenticating Agent”) reasonably acceptable to the
Company to authenticate the Securities of the series issued upon
exchange, registration of transfer or partial redemption thereof,
and the 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. The
Trustee shall give written notice of such appointment to all
Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Unless limited by the terms of
such appointment, any such Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication and delivery by the Trustee includes
authentication and delivery by the Authenticating Agent. 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.

 



53






 





  

Each Authenticating
Agent shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of
the United States, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $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 Article XI, 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 Article XI, it
shall resign immediately in the manner and with the effect
specified in this Article XI.

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 Article XI, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating
Agent.

An Authenticating
Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section 11.09, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall give written notice of such appointment 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 11.09.

The Trustee agrees
to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 11.09, and
the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 11.01.

Section
11.10      Communications by Securityholders with
Other Securityholders. Holders of Securities may communicate
pursuant to Section 312(b) of the Trust Indenture Act with
other Holders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone
else shall have the protection of Section 312(c) of the Trust
Indenture Act with respect to such communications.

 



54






 





  

Article
XII

SATISFACTION AND DISCHARGE; DEFEASANCE

Section
12.01       Applicability of Article. If,
pursuant to Section 3.01, provision is made for the defeasance
of Securities of a series and if the Securities of such series are
denominated and payable only in U.S. Dollars (except as provided
pursuant to Section 3.01), then the provisions of this Article
shall be applicable except as otherwise specified pursuant to
Section 3.01 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign
Currency may be specified pursuant to
Section 3.01.

Section
12.02       Satisfaction and Discharge of
Indenture. This Indenture, with respect to the Securities of
any series (if all series issued under this Indenture are not to be
affected), shall, upon Company Order, cease to be of further effect
(except as to any surviving rights of registration of transfer or
exchange of such Securities herein expressly provided for and
rights to receive payments of principal of and premium, if any, and
interest on such Securities) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when,

(a)          either:

(i)          all
Securities of such series theretofore authenticated and delivered
(other than (A) Securities that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 3.07 and (B) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 6.03) have
been delivered to the Trustee for cancellation; or

(ii)         all
Securities of such series not theretofore delivered to the Trustee
for cancellation,

(A)         have
become due and payable, or

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

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



and in the case of
(A), (B) or (C) above, has deposited or caused to be
deposited with the Trustee or Paying Agent as trust funds in trust
for the purpose an amount in the Currency in which such Securities
are denominated (except as otherwise provided pursuant to
Section 3.01) sufficient to pay and discharge the entire
Indebtedness on such Securities for principal and premium, if any,
and interest to the date of such deposit (in the case of Securities
that have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; provided, however, in the
event a petition for relief under federal bankruptcy laws, as now
or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, is filed with respect
to the Company within 91 days after the deposit and the Trustee is
required to return the moneys then on deposit with the Trustee to
the Company, the obligations of the Company under this Indenture
with respect to such Securities shall not be deemed terminated or
discharged;





55






 





 

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

(c)          the
Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with. Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee under
Section 11.01 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (a)(i) of this
Section, the obligations of the Trustee under Section 12.07
and the last paragraph of Section 6.03(e) shall
survive.

Section
12.03       Defeasance upon Deposit of Moneys or
U.S. Government Obligations. At the Company’s option,
either (a) the Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to Securities
of any series on the first day after the applicable conditions set
forth below have been satisfied or (b) the Company shall cease
to be under any obligation to comply with any term, provision or
condition set forth in Section 6.04 and Section 10.02
with respect to Securities of any series (and, if so specified
pursuant to Section 3.01, any other restrictive covenant added
for the benefit of such series pursuant to Section 3.01) at
any time after the applicable conditions set forth below have been
satisfied (such action under clauses (a) or (b) of this
paragraph in no circumstance may be construed as an Event of
Default under Section 7.01):

(a)          The
Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Securities of such series (i) cash in U.S. Dollars in
an amount, or (ii) U.S. Government Obligations (as defined
below) that through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in U.S.
Dollars in an amount, or (iii) a combination of (i) and
(ii), sufficient to pay and discharge each installment of principal
(including any mandatory sinking fund payments or any analogous
payments applicable to the Outstanding Securities) of and premium,
if any, and interest on, the Outstanding Securities of such series
on the dates such installments of interest or principal and premium
are due; provided that the Trustee shall have been irrevocably
instructed to apply such cash or the proceeds of such U.S.
Government Obligations to said payments with respect to the
Securities.

(b)          No
Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit (other than
a Default resulting from the borrowing of funds and the grant of
any related liens to be applied to such deposit); and

(c)          The
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will
not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the Company’s exercise of its option
under this Section and will be subject to federal income tax on the
same amounts and in the same manner and at the same times as would
have been the case if such action had not been exercised and, in
the case of the Securities of such series being Discharged
accompanied by a ruling to that effect received from or published
by the Internal Revenue Service.

 



56






 





  

“Discharged”
means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of
Holders of Securities of such series to receive, from the trust
fund described in clause (a) above, payment of the principal
of and premium, if any, and interest on such Securities when such
payments are due, (B) the Company’s obligations with
respect to Securities of such series under Sections 3.04, 3.06,
3.07, 6.02, 12.06 and 12.07 and (C) the rights, powers,
trusts, duties and immunities of the Trustee
hereunder.

“U.S.
Government Obligations” means securities that are
(i) direct obligations of the United States for the payment of
which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely of payment of which
is unconditionally guaranteed as a full faith and credit obligation
by the United States, that, in either case under clauses
(i) or (ii) are not callable or redeemable at the action
of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) or trust company as custodian
with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of
a depositary receipt; 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 interest on or principal of
the U.S. Government Obligation evidenced by such depositary
receipt.

Section
12.04      Repayment to Company. The
Trustee and any Paying Agent shall promptly pay to the Company (or
to its designee) upon Company Order any excess moneys or U.S.
Government Obligations held by them at any time, including any such
moneys or obligations held by the Trustee under any escrow trust
agreement entered into pursuant to Section 12.06. The
provisions of the last paragraph of Section 6.03 shall apply
to any money held by the Trustee or any Paying Agent under this
Article that remains unclaimed for two years after the Maturity of
any series of Securities for which money or U.S. Government
Obligations have been deposited pursuant to
Section 12.03.

Section
12.05       Indemnity for U.S. Government
Obligations. The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed
against the cash or deposited U.S. Government Obligations or the
principal or interest received in respect thereof.

 



57






 





  

Section
12.06      Deposits to Be Held in Escrow.
Any deposits with the Trustee referred to in Section 12.03
above shall be irrevocable (except to the extent provided in
Sections 12.04 and 12.07) and shall be made under the terms of an
escrow trust agreement in form and substance agreed upon by the
Trustee and the Company. If any Outstanding Securities of a series
are to be redeemed prior to their Stated Maturity, whether pursuant
to any optional redemption provisions or in accordance with any
mandatory or optional sinking fund requirement, the applicable
escrow trust agreement shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company. The agreement shall provide that, upon
satisfaction of any mandatory sinking fund payment requirements,
whether by deposit of moneys, application of proceeds of deposited
U.S. Government Obligations or, if permitted, by delivery of
Securities, the Trustee shall pay or deliver over to the Company as
excess moneys pursuant to Section 12.04 all funds or
obligations then held under the agreement and allocable to the
sinking fund payment requirements so satisfied.

If Securities of a
series with respect to which such deposits are made may be subject
to later redemption at the option of the Company or pursuant to
optional sinking fund payments, the applicable escrow trust
agreement may, at the option of the Company, provide therefor. In
the case of an optional redemption in whole or in part, such
agreement shall require the Company to deposit with the Trustee on
or before the date notice of redemption is given funds sufficient
to pay the Redemption Price of the Securities to be redeemed
together with all unpaid interest thereon to the Redemption Date.
Upon such deposit of funds, the Trustee shall pay or deliver over
to the Company as excess funds pursuant to Section 12.04 all
funds or obligations then held under such agreement and allocable
to the Securities to be redeemed. In the case of exercise of
optional sinking fund payment rights by the Company, such agreement
shall, at the option of the Company, provide that upon deposit by
the Company with the Trustee of funds pursuant to such exercise the
Trustee shall pay or deliver over to the Company as excess funds
pursuant to Section 12.04 all funds or obligations then held
under such agreement for such series and allocable to the
Securities to be redeemed.

Section
12.07       Application of Trust
Money.

(a)          Neither
the Trustee nor any other Paying Agent shall be required to pay
interest on any moneys deposited pursuant to the provisions of this
Indenture, except such as it shall agree with the Company in
writing to pay thereon. Any moneys so deposited for the payment of
the principal of, or premium, if any, or interest on the Securities
of any series and remaining unclaimed for two years after the date
of the maturity of the Securities of such series or the date fixed
for the redemption of all the Securities of such series at the time
outstanding, as the case may be, shall be repaid by the Trustee or
such other Paying Agent to the Company upon its written request and
thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the Holders of Securities of such
series in respect of which such moneys shall have been deposited
shall be enforceable only against the Company, and all liability of
the Trustee or such other Paying Agent with respect to such moneys
shall thereafter cease.

(b)          Subject
to the provisions of the foregoing paragraph, any moneys which at
any time shall be deposited by the Company or on its behalf with
the Trustee or any other Paying Agent for the purpose of paying the
principal of, premium, if any, and interest on any of the
Securities shall be and are hereby assigned, transferred and set
over to the Trustee or such other Paying Agent in trust for the
respective Holders of the Securities for the purpose for which such
moneys shall have been deposited; but such moneys need not be
segregated from other funds except to the extent required by
law.

 



58






 





  

Section
12.08      Deposits of Non-U.S.
Currencies. Notwithstanding the foregoing provisions of this
Article, if the Securities of any series are payable in a Currency
other than U.S. Dollars, the Currency or the nature of the
government obligations to be deposited with the Trustee under the
foregoing provisions of this Article shall be as set forth in the
Officer’s Certificate or established in the supplemental
indenture under which the Securities of such series are
issued.

Article
XIII

IMMUNITY OF CERTAIN PERSONS



Section
13.01      No Personal Liability. No
recourse shall be had for the payment of the principal of, or the
premium, if any, or interest on, any Security or for any claim
based thereon or otherwise in respect thereof or of the
Indebtedness represented thereby, or upon any obligation, covenant
or agreement of this Indenture, against any incorporator,
stockholder, officer or director, 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 constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor
corporation, because of the incurring of the Indebtedness hereby
authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in
any of the Securities, or to be implied herefrom or therefrom, and
that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the
acceptance of the Securities and as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issue of the Securities expressly waived and released.

Article
XIV

SUPPLEMENTAL INDENTURES



Section
14.01      Without Consent of
Securityholders. Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of
Securities, the Company 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 one or more of or all
the following purposes:



(a)          to
add to the covenants and agreements of the Company, to be observed
thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in
each case for the protection or benefit of the Holders of all or
any series of the Securities (and if such covenants, agreements and
Events of Default are to be for the benefit of fewer than all
series of Securities, stating that such covenants, agreements and
Events of Default are expressly being included for the benefit of
such series as shall be identified therein), or to surrender any
right or power herein conferred upon the Company;

(b)          to
delete or modify any Events of Default with respect to all or any
series of the Securities, the form and terms of which are being
established pursuant to such supplemental indenture as permitted in
Section 3.01 (and, if any such Event of Default is applicable
to fewer than all such series of the Securities, specifying the
series to which such Event of Default is applicable), and to
specify the rights and remedies of the Trustee and the Holders of
such Securities in connection therewith;

 



59






 





  

(c)          to
add to or change any of the provisions of this Indenture to
provide, change or eliminate any restrictions on the payment of
principal of or premium, if any, on Securities; provided that any
such action shall not adversely affect the interests of the Holders
of Securities of any series in any material respect;

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

(e)          to
evidence the succession of another corporation to the Company, or
successive successions, and the assumption by such successor of the
covenants and obligations of the Company contained in the
Securities of one or more series and in this Indenture or any
supplemental indenture;

(f)          to
evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to one or more series of
Securities and to add to or change any of the provisions of this
Indenture as shall be necessary for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 11.06(c);

(g)          to
secure any series of Securities;

(h)          to
evidence any changes to this Indenture pursuant to Sections 11.05,
11.06 or 11.07 hereof as permitted by the terms
thereof;

(i)          to
cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may
be defective or inconsistent with any other provision contained
herein or in any supplemental indenture or to conform the terms
hereof, as amended and supplemented, that are applicable to the
Securities of any series to the description of the terms of such
Securities in the offering memorandum, prospectus supplement or
other offering document applicable to such Securities at the time
of initial sale thereof, 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;

(j)          to
add to or change or eliminate any provision of this Indenture as
shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act;

(k)          to
add guarantors or co-obligors with respect to any series of
Securities or to release guarantors from their guarantees of
Securities in accordance with the terms of the applicable series of
Securities;

(l)          to
make any change in any series of Securities that does not adversely
affect in any material respect the interests of the Holders of such
Securities;

(m)          to
provide for uncertificated securities in addition to certificated
securities;

 



60






 





 


(n)          to
supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities; 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;

(o)          to
prohibit the authentication and delivery of additional series of
Securities; or

(p)          to
establish the form and terms of Securities of any series as
permitted in Section 3.01, or to authorize the issuance of
additional Securities of a series previously authorized or to add
to the conditions, limitations or restrictions on the authorized
amount, terms or purposes of issue, authentication or delivery of
the Securities of any series, as herein set forth, or other
conditions, limitations or restrictions thereafter to be
observed.

Subject to the
provisions of Section 14.03, the Trustee is authorized to join
with the Company in the execution of any such supplemental
indenture, to make the further agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property or assets
thereunder.

Any supplemental
indenture authorized by the provisions of this Section 14.01
may be executed by the Company and the Trustee without the consent
of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of
Section 14.02.

Section
14.02       With Consent of Securityholders;
Limitations.

(a)          With
the consent of the Holders (evidenced as provided in Article VIII)
of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such supplemental indenture
voting separately, the Company and the Trustee may, from time to
time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any provisions of this
Indenture or of modifying in any manner the rights of the Holders
of the Securities of such series to be affected; provided, however,
that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security of each such series
affected thereby,

(i)          extend
the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof
or the interest thereon or any premium payable upon redemption
thereof, or extend the Stated Maturity of, or change the place of
payment where, or the Currency in which the principal of and
premium, if any, or interest on such Security is denominated or
payable, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to
Section 7.02, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date),
or materially adversely affect the economic terms of any right to
convert or exchange any Security as may be provided pursuant to
Section 3.01; or

(ii)         reduce
the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any
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

 



61






 





 


(iii)        modify
any of the provisions of this Section, Section 7.06 or
Section 6.06, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to “the
Trustee” and concomitant changes in this Section and
Section 6.06, or the deletion of this proviso, in accordance
with the requirements of Sections 11.06 and 14.01(f);
or

(iv)        modify,
without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.

(b)          A
supplemental indenture that changes or eliminates any 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.

(c)          It
shall not be necessary for the consent of the Securityholders under
this Section 14.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.

(d)          The
Company may set a record date for purposes of determining the
identity of the Holders of each series of Securities entitled to
give a written consent or waive compliance by the Company as
authorized or permitted by this Section. Such record date shall not
be more than 30 days prior to the first solicitation of such
consent or waiver or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to
Section 312 of the Trust Indenture Act.

(e)          Promptly
after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this
Section 14.02, the Company shall mail a notice, setting forth
in general terms the substance of such supplemental indenture, to
the Holders of Securities at their addresses as the same shall then
appear in the Register of the Company. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.

Section
14.03       Trustee Protected. Upon the
request of the Company, accompanied by the Officer’s
Certificate and Opinion of Counsel required by Section 16.01
and evidence reasonably satisfactory to the Trustee of consent of
the Holders if the supplemental indenture is to be executed
pursuant to Section 14.02, the Trustee shall join with the
Company in the execution of said supplemental indenture unless said
supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated
to, enter into said supplemental indenture. The Trustee shall be
fully protected in relying upon such Officer’s Certificate
and an Opinion of Counsel.

 



62






 





  

Section
14.04       Effect of Execution of Supplemental
Indenture. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article XIV, this Indenture
shall be deemed to be modified and amended in accordance therewith
and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of
all of the Securities or of the Securities of any series affected,
as the case may be, shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes.

Section
14.05       Notation on or Exchange of
Securities. Securities of any series authenticated and
delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
the form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so
determine, new Securities so modified as to conform, in the opinion
of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the
Securities then Outstanding in equal aggregate principal amounts,
and such exchange shall be made without cost to the Holders of the
Securities.

Section
14.06       Conformity with TIA. Every
supplemental indenture executed pursuant to the provisions of this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.

Article
XV

SUBORDINATION OF SECURITIES



Section
15.01       Agreement to Subordinate. In
the event a series of Securities is designated as subordinated
pursuant to Section 3.01, and except as otherwise provided in
a Company Order or in one or more indentures supplemental hereto,
the Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities of such series by his, her or
its acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest, if
any, on each and all of the Securities of such series is hereby
expressly subordinated, to the extent and in the manner hereinafter
set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. In the event a series of Securities is not
designated as subordinated pursuant to Section 3.01(s), this
Article XV shall have no effect upon the Securities.

Section
15.02       Distribution on Dissolution,
Liquidation and Reorganization; Subrogation of Securities.
Subject to Section 15.01, upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power
of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon
the Senior Indebtedness and the holders thereof with respect to the
Securities and the holders thereof by a lawful plan of
reorganization under applicable bankruptcy law):

 



63






 





  

(a)          the
holders of all Senior Indebtedness shall be entitled to receive
payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Securities are
entitled to receive any payment upon the principal (or premium, if
any) or interest, if any, on Indebtedness evidenced by the
Securities; and

(b)          any
payment 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 provisions of this Article XV shall be paid by the
liquidation trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of the principal of (and premium, if any) and interest on
the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness;
and

(c)          in
the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities prohibited by the
foregoing, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness is paid in full, such
payment or distribution shall be paid over, upon written notice to
a Responsible Officer of the Trustee, to the holder of such Senior
Indebtedness or his, her or its representative or representatives
or to the trustee or trustees under any indenture under which any
instrument evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, as calculated by the Company, for
application to payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.

(d)          Subject
to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness (to the extent that distributions otherwise
payable to such holder have been applied to the payment of Senior
Indebtedness) to receive payments or distributions of cash,
property or securities of the Company applicable to Senior
Indebtedness until the principal of (and premium, if any) and
interest, if any, on the Securities shall be paid in full and no
such payments or distributions to the Holders of the Securities of
cash, property or securities otherwise distributable to the holders
of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of
the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of
this Article XV are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness, on the
other hand. Nothing contained in this Article XV or elsewhere in
this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the
obligation of the Company, which is unconditional and absolute, to
pay to the Holders of the Securities the principal of (and premium,
if any) and interest, if any, on the Securities as and when the
same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or in the Securities
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 XV of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of
assets of the Company referred to in this Article XV, the Trustee,
subject to the provisions of Section 15.05, shall be entitled
to conclusively rely upon a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee for
the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereof and all other
facts pertinent thereto or to this Article XV.

 



64






 





  

Section
15.03       No Payment on Securities in Event of
Default on Senior Indebtedness. Subject to
Section 15.01, no payment by the Company on account of
principal (or premium, if any), sinking funds or interest, if any,
on the Securities shall be made at anytime if: (i) a default
on Senior Indebtedness exists that permits the holders of such
Senior Indebtedness to accelerate its maturity and (ii) the
default is the subject of judicial proceedings or the Company has
received notice of such default. The Company may resume payments on
the Securities when full payment of amounts then due for principal
(premium, if any), sinking funds and interest on Senior
Indebtedness has been made or duly provided for in money or
money’s worth.

In the event that,
notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by the preceding paragraph
of this Section 15.03, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders
of such Senior Indebtedness or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which
any of such Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company, but
only to the extent that the holders of such Senior Indebtedness (or
their representative or representatives or a trustee) notify the
Trustee in writing within 90 days of such payment of the amounts
then due and owing on such Senior Indebtedness and only the amounts
specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.

Section
15.04       Payments on Securities
Permitted. Subject to Section 15.01, nothing contained
in this Indenture or in any of the Securities shall (a) affect
the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 15.02 and 15.03,
payments of principal of (or premium, if any) or interest, if any,
on the Securities or (b) prevent the application by the
Trustee of any moneys or assets deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any)
or interest, if any, on the Securities, unless a Responsible
Officer of the Trustee shall have received at its Corporate Trust
Office written notice of any fact prohibiting the making of such
payment from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with
proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee more than two
Business Days prior to the date fixed for such
payment.

 



65






 





  

Section
15.05       Authorization of Securityholders to
Trustee to Effect Subordination. Subject to
Section 15.01, each Holder of Securities by his acceptance
thereof authorizes and directs the Trustee on his, her or its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article XV and
appoints the Trustee his attorney-in-fact for any and all such
purposes.



Section
15.06       Notices to Trustee. The Company
shall give prompt written notice to a Responsible Officer of the
Trustee of any fact known to the Company that would prohibit the
making of any payment of monies or assets to or by the Trustee in
respect of the Securities of any series pursuant to the provisions
of this Article XV. Subject to Section 15.01, notwithstanding
the provisions of this Article XV or any other provisions of this
Indenture, neither the Trustee nor any Paying Agent (other than the
Company) shall be charged with knowledge of the existence of any
Senior Indebtedness or of any fact which would prohibit the making
of any payment of moneys or assets to or by the Trustee or such
Paying Agent, unless and until a Responsible Officer of the Trustee
or such Paying Agent shall have received (in the case of a
Responsible Officer of the Trustee, at the Corporate Trust Office
of the Trustee) written notice thereof from the Company or from the
holder of any Senior Indebtedness or from the trustee for any such
holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee
and, prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects conclusively to presume that no
such facts exist; provided, however, that if at least two Business
Days prior to the date upon which by the terms hereof any such
moneys or assets may become payable for any purpose (including,
without limitation, the payment of either the principal (or
premium, if any) or interest, if any, on any Security) a
Responsible Officer of the Trustee shall not have received with
respect to such moneys or assets the notice provided for in this
Section 15.06, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such moneys or assets 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 within two
Business Days prior to such date. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such a notice
has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines
in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article
XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this
Article XV and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.



Section
15.07       Trustee as Holder of Senior
Indebtedness. Subject to Section 15.01, the Trustee in
its individual capacity shall be entitled to all the rights set
forth in this Article XV in respect of any Senior Indebtedness at
any time held by it to the same extent as any other holder of
Senior Indebtedness and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such
holder. Nothing in this Article XV shall apply to claims of, or
payments to, the Trustee under or pursuant to Sections 7.05 or
11.01.

 



66






 





  

Section
15.08       Modifications of Terms of Senior
Indebtedness. Subject to Section 15.01, any renewal or
extension of the time of payment of any Senior Indebtedness or the
exercise by the holders of Senior Indebtedness of any of their
rights under any instrument creating or evidencing Senior
Indebtedness, including, without limitation, the waiver of default
thereunder, may be made or done all without notice to or assent
from the Holders of the Securities or the Trustee. No compromise,
alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the
terms, covenants or conditions of any indenture or other instrument
under which any Senior Indebtedness is outstanding or of such
Senior Indebtedness, whether or not such release is in accordance
with the provisions of any applicable document, shall in any way
alter or affect any of the provisions of this Article XV or of the
Securities relating to the subordination thereof.



Section
15.09       Reliance on Judicial Order or
Certificate of Liquidating Agent. Subject to
Section 15.01, upon any payment or distribution of assets of
the Company referred to in this Article XV, the Trustee and the
Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment
or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article XV.



Section
15.10       Satisfaction and Discharge; Defeasance
and Covenant Defeasance. Subject to Section 15.01,
amounts and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Article XII and not, at
the time of such deposit, prohibited to be deposited under Sections
15.02 or 15.03 shall not be subject to this Article
XV.



Section
15.11       Trustee Not Fiduciary for Holders of
Senior Indebtedness. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or observe only
such of its covenants and obligations as are specifically set forth
in this Article XV, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness.
The Trustee shall not be liable to any such holder if it shall pay
over or distribute to or on behalf of Holders of Securities or the
Company, or any other Person, moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article
XV or otherwise.

Article
XVI

MISCELLANEOUS PROVISIONS



Section
16.01       Certificates and Opinions as to
Conditions Precedent.

 



67






 





  

(a)          Upon
any request or application by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate
stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as
to which the furnishing of such document is specifically required
by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.



(b)          Each
certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 6.05 of this
Indenture) shall include (i) a statement that the Person
signing such certificate or opinion has read such covenant or
condition and the definitions herein related thereto; (ii) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (iii) a statement that,
in the view or opinion of such Person, he or she has made such
examination or investigation as is necessary to enable such Person
to express an informed view or opinion as to whether or not such
covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the view or opinion of such
Person, such condition or covenant has been complied
with.



(c)          Any
certificate, statement 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, statement
or opinion is based are erroneous. Any certificate, statement or
opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate, statement 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,
statement or opinion or representations with respect to such
matters are erroneous.



(d)          Any
certificate, statement or opinion of an officer of the Company or
of counsel to the Company may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of, or
representations by, an accountant or firm of accountants, unless
such officer or counsel, as the case may be, knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting matters
upon which his or her certificate, statement or opinion may be
based are erroneous. Any certificate or opinion of any firm of
independent registered public accountants filed with the Trustee
shall contain a statement that such firm is
independent.



(e)          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.

 



68






 





 


(f)          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
16.02       Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or another
provision included in this Indenture which is required to be
included in this Indenture by any of the provisions of Sections 310
to 318, inclusive, of the Trust Indenture Act, such imposed duties
or incorporated provision shall control.

Section
16.03       Notices to the Company and
Trustee. Any notice or demand authorized by this Indenture
to be made upon, given or furnished to, or filed with, the Company
or the Trustee shall be sufficiently made, given, furnished or
filed for all purposes if it shall be mailed, delivered or
telefaxed to:

(a)          the
Company, at 3 Columbus Circle, 15th Floor, New York,
New York 10019, Attention: Sean Power, or at such other address or
facsimile number as may have been furnished in writing to the
Trustee by the Company.

(b)          the
Trustee, at the Corporate Trust Office of the Trustee, Attention:
Trust Administrator.

Any such notice,
demand or other document shall be in the English
language.

Section
16.04       Notices to Securityholders;
Waiver. Any notice required or permitted to be given to
Securityholders shall be sufficiently given (unless otherwise
herein expressly provided),

(a)          if
to Holders, if given in writing by first class mail, postage
prepaid, to such Holders at their addresses as the same shall
appear on the Register of the Company.

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

(c)          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 on such
waiver. In any case where notice to Holders is given by mail;
neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. In any case where
notice to Holders is given by publication, any defect in any notice
so published as to any particular Holder shall not affect the
sufficiency of such notice with respect to other Holders, and any
notice that is published in the manner herein provided shall be
conclusively presumed to have been duly given.



Section
16.05       Legal
Holiday. Unless otherwise
specified pursuant to Section 3.01, in any case where any
Interest Payment Date, Redemption Date or Maturity of any Security
of any series shall not be a Business Day at any Place of Payment
for the Securities of that series, then payment of principal and
premium, if any, or interest 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 such Interest Payment Date, Redemption Date or
Maturity and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, Redemption Date
or Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business
Day.



 



Section
16.06       Effects 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
16.07       Successors and
Assigns. All covenants and
agreements in this Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or
not.



 



Section
16.08       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
16.09      Benefits
of Indenture. Nothing in this
Indenture expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer
upon, or to give to, any Person or corporation other than the
parties hereto and their successors and the Holders of the
Securities any benefit or any right, remedy or claim under or by
reason of this Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Indenture contained
shall be for the sole and exclusive benefit of the parties hereto
and their successors and of the Holders of the
Securities.



 



Section
16.10      Counterparts
Originals. This Indenture may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.



 



Section
16.11      Governing
Law; Waiver of Trial by Jury.
This Indenture and the Securities shall be deemed to be contracts
made under the law of the State of New York, and for all purposes
shall be governed by and construed in accordance with the law of
said State.



 



EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE
THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS INDENTURE.


 


 



 69







 





 


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


 


	
 

	

TG
THERAPEUTICS, INC.,


as
Issuer


	
 

	
 

	
 


	
 

	

By:

	
 


	
 

	

Name:

	
 


	
 

	

Title:

	
 


	
 

	
 

	
 


	
 

	





	
 

	

as
Trustee

	
 


	
 

	
 

	
 


	
 

	

By:

	
 


	
 

	

Name:

	
 


	
 

	

Title:

	
 







 







 




  70