Exhibit 4.8


 


FORM OF
INDENTURE


 


GRIFFON
CORPORATION,


 


as Issuer,


 


Each of the
Guarantors from time to time party hereto,


 


as Guarantors,


 


and


 


[                                            ],


 


as Trustee


 


Indenture


 


Dated as of [            ]


 


Providing for the
Issuance


 


Of


 


Debt Securities


 

















 


GRIFFON
CORPORATION


 


Reconciliation and
tie between Trust Indenture Act of 1939


 


and Indenture,
dated as of [            ]


 




	
  Trust Indenture

  	
   

  	
  Indenture

  
	
  Act Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  § 310

  	
   

  	
  (a)(1)

  	
   

  	
  6.07

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  6.07

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.09

  
	
  § 311

  	
   

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.06

  
	
  § 312

  	
   

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.01

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.02

  
	
  § 313

  	
   

  	
  (a)

  	
   

  	
  7.03

  
	
   

  	
   

  	
  (b)(2)

  	
   

  	
  7.03

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.03

  
	
  § 314

  	
   

  	
  (a)

  	
   

  	
  7.04

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  10.05

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  1.02

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  1.02

  
	
   

  	
   

  	
  (e)

  	
   

  	
  1.02

  
	
  § 315

  	
   

  	
  (a)

  	
   

  	
  6.01

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.01

  
	
   

  	
   

  	
  (c)

  	
   

  	
  6.01

  
	
   

  	
   

  	
  (d)

  	
   

  	
  6.01

  
	
  § 316

  	
   

  	
  (a) (last
  sentence)

  	
   

  	
  1.01 (“Outstanding”)

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  5.02, 5.12

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.08

  
	
  § 317

  	
   

  	
  (a)(1)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  5.04

  
	
   

  	
   

  	
  (b)

  	
   

  	
  10.03

  
	
  § 318

  	
   

  	
  (a)

  	
   

  	
  1.11

  
	
   

  	
   

  	
  (c)

  	
   

  	
  1.11

  






 






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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE

  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.02

  	
  Compliance Certificates and Opinions

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.03

  	
  Form of Documents Delivered to Trustee

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 1.04

  	
  Acts of Holders

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 1.05

  	
  Notices, Etc., to Trustee, Company and the Guarantors

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 1.06

  	
  Notice to Holders; Waiver

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 1.07

  	
  Effect of Headings and Table of Contents

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 1.08

  	
  Successors and Assigns

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 1.09

  	
  Separability Clause

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 1.10

  	
  Benefits of Indenture

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 1.11

  	
  Governing Law

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 1.12

  	
  Legal Holidays

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 1.13

  	
  Submission to Jurisdiction

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 1.14

  	
  Conflict with Trust Indenture Act

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 1.15

  	
  Counterparts

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  SECURITIES FORMS

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Forms of Securities

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 2.02

  	
  Form of Trustee’s Certificate of Authentication

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 2.03

  	
  Securities Issuable in Global Form

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Amount Unlimited; Issuable in Series

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.02

  	
  Denominations

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.03

  	
  Execution, Authentication, Delivery and Dating

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.04

  	
  Temporary Securities

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.05

  	
  Registration, Transfer and Exchange

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 3.06

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 3.07

  	
  Payment of Interest; Interest Rights Preserved; Optional Interest
  Reset

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.08

  	
  Optional Extension of Maturity

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 3.09

  	
  Persons Deemed Owners

  	
  30

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  Cancellation

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  Computation of Interest

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Currency and Manner of Payments in Respect of Securities

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 3.13

  	
  Appointment and Resignation of Successor Exchange Rate Agent

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 3.14

  	
  CUSIP Numbers

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Satisfaction and Discharge of Indenture

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 4.02

  	
  Application of Trust Funds

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Events of Default

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.02

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.03

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.04

  	
  Trustee May File Proofs of Claim

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.05

  	
  Trustee May Enforce Claims Without Possession of Securities or
  Coupons

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.06

  	
  Application of Money Collected

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.07

  	
  Limitation on Suits

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.08

  	
  Unconditional Right of Holders to Receive Principal, Premium and
  Interest

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.09

  	
  Restoration of Rights and Remedies

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Control by Holders of Securities

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Waiver of Stay or Extension Laws

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Duties of Trustee and Notice of Defaults

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.02

  	
  Certain Rights of Trustee

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.03

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.04

  	
  May Hold Securities

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.05

  	
  Money Held in Trust

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 6.06

  	
  Compensation and Reimbursement and Indemnification of Trustee

  	
  46

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.07

  	
  Corporate Trustee Required; Eligibility

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 6.08

  	
  Disqualification; Conflicting Interests

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 6.09

  	
  Resignation and Removal; Appointment of Successor

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Acceptance of Appointment by Successor

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 6.11

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 6.12

  	
  Appointment of Authenticating Agent

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Disclosure of Names and Addresses of Holders

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 7.02

  	
  Preservation of Information; Communications to Holders

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 7.03

  	
  Reports by Trustee

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 7.04

  	
  Reports by Company

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 7.05

  	
  Calculation of Original Issue Discount

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 7.06

  	
  Preferential Collection of Claims Against Company

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 8.02

  	
  Successor Person Substituted

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental Indentures Without Consent of Holders

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 9.02

  	
  Supplemental Indentures with Consent of Holders

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 9.03

  	
  Execution of Supplemental Indentures

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 9.04

  	
  Effect of Supplemental Indentures

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 9.05

  	
  Conformity with Trust Indenture Act

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 9.06

  	
  Reference in Securities to Supplemental Indentures

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Payment of Principal, Premium, if any, and Interest

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 10.02

  	
  Maintenance of Office or Agency

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 10.03

  	
  Money for Securities Payments to Be Held in Trust

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 10.04

  	
  Additional Amounts

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 10.05

  	
  Statement as to Compliance

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 10.06

  	
  Corporate Existence

  	
  60

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.07

  	
  Waiver of Certain Covenants

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  REDEMPTION OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Applicability of Article

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 11.02

  	
  Election to Redeem; Notice to Trustee

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 11.03

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 11.04

  	
  Notice of Redemption

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 11.05

  	
  Deposit of Redemption Price

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 11.06

  	
  Securities Payable on Redemption Date

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 11.07

  	
  Securities Redeemed in Part

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 11.08

  	
  Repurchases on the Open Market

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  SINKING FUNDS

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Applicability of Article

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 12.02

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 12.03

  	
  Redemption of Securities for Sinking Fund

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN

  REPAYMENT AT THE OPTION OF HOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Applicability of Article

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.02

  	
  Repayment of Securities

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.03

  	
  Exercise of Option

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 13.04

  	
  When Securities Presented for Repayment Become Due and Payable

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 13.05

  	
  Securities Repaid in Part

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOURTEEN

  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Applicability of Article; Company’s Option to Effect Defeasance or
  Covenant Defeasance

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 14.02

  	
  Defeasance and Discharge

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 14.03

  	
  Covenant Defeasance

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 14.04

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 14.05

  	
  Deposited Money and Government Obligations to Be Held in Trust; Other
  Miscellaneous Provisions

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIFTEEN

  [SUBORDINATION OF SECURITIES]

  
	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Agreement to Subordinate

  	
  70

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 15.02

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

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 15.03

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

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 15.04

  	
  Payments on Subordinated Securities Permitted

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 15.05

  	
  Authorization of Holders to Trustee to Effect Subordination

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.06

  	
  Notices to Trustee

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.07

  	
  Trustee as Holder of Senior Indebtedness

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.08

  	
  Modifications of Terms of Senior Indebtedness

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 15.09

  	
  Reliance on Judicial Order or Certificate of Liquidating Agent

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIXTEEN

  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 16.01

  	
  Guarantee

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 16.02

  	
  Execution and Delivery of Guarantee

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 16.03

  	
  Limitation of Guarantee

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 16.04

  	
  Waiver of Subrogation

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 16.05

  	
  Release of Guarantee

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 16.06

  	
  Contribution from Other Guarantors

  	
  77

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A:

  	
  FORM OF DEBT SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B:

  	
  FORM OF GUARANTEE

  	
   

  



 


v














 


INDENTURE,
dated as of
[                                    ],
by and among GRIFFON CORPORATION, a Delaware corporation (hereinafter called
the “Company”), having its principal office at 100 Jericho Quadrangle,
Jericho, New York 11753, the Guarantors (as defined herein) and [                       ],
as Trustee (hereinafter called the “Trustee”), having its Corporate
Trust Office at [                                                                                                                          ].


 


RECITALS OF THE COMPANY


 


The
Company deems it necessary to issue from time to time for its lawful purposes
debt securities (hereinafter called the “Securities”) evidencing its
unsecured indebtedness, which may or may not be convertible into or exchangeable
for any securities of any Person (including the Company), and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, to be issued in one or more
series, unlimited as to principal amount, to bear such rates of interest, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.


 


This
Indenture (as defined herein) is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.


 


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:


 


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


 


ARTICLE ONE



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.01         Definitions.


 


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


 


(1)           the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular and, pursuant to Section 3.01,
any such item may, with respect to any particular series of Securities, be
amended or modified or specified as being inapplicable;


 


(2)           all
other terms used herein which are defined in the Trust Indenture Act (as
defined herein), either directly or by reference therein, have the meanings
assigned to them therein, and the terms “cash transaction” and “self-liquidating
paper”, as used in Section 311 of the Trust Indenture Act, shall have the
meanings assigned to them in the rules of the Commission (as defined
herein) adopted under the Trust Indenture Act;


 


(3)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States of America; and


 

















 


(4)           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.


 


Certain
terms, used principally in Article Three, Article Five, Article Six
and Article Ten, are defined in those Articles.


 


“Act”,
when used with respect to any Holder of a Security, has the meaning specified
in Section 1.04.


 


“Additional
Amounts” means any additional amounts which are required by a Security or
by or pursuant to a Board Resolution, under circumstances specified therein, to
be paid by the Company in respect of certain taxes, assessments or other
government charges imposed on certain Holders and which are owing to such
Holders.


 


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


 


“Authenticating
Agent” means any authenticating agent appointed by the Trustee pursuant to Section 6.12
to act on behalf of the Trustee to authenticate Securities of one or more
series.


 


“Authorized
Newspaper” means a newspaper, in the English language or in an official
language of the country of publication, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.


 


“Bearer
Security” means any Security established pursuant to Section 2.01
which is payable to bearer.


 


“Board
of Directors” means the board of directors of the Company, the executive
committee or any committee of that board duly authorized to act hereunder.


 


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


 


“Business
Day”, when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01,
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or obligated by law, regulation or executive order to close.


 


“Clearstream”
means Clearstream International or its successor.


 


2

















 


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.


 


“Common
Depositary” has the meaning specified in Section 3.04.


 


“Company”
means 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.


 


“Company
Request” and “Company Order” mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by any one of
the Chairman, the Vice Chairman, the Chief Executive Officer, the President or
a Vice President, the Chief Financial Officer, the Chief Operating Officer, the
Secretary or an Assistant Secretary, the Treasurer or an Assistant Treasurer of
the Company, and delivered to the Trustee.


 


“Conversion
Date” has the meaning specified in Section 3.12(d).


 


“Conversion
Event” means the cessation of use of (i) a Foreign Currency both by
the government of the country which issued such currency and for the settlement
of transactions by a central bank or other public institutions of or within the
international banking community or (ii) any currency unit (or composite
currency) for the purposes for which it was established.


 


“Corporate
Trust Office” means the office of the Trustee at which, at any particular
time, its corporate trust business shall be principally administered, which
office at the date hereof is located at [          ].


 


“corporation”
includes corporations, limited liability companies, associations, companies and
business trusts.


 


“coupon”
means any interest coupon appertaining to a Bearer Security.


 


“Currency”
means Dollars or the Foreign Currency, as the case may be, in which such
payment, deposit or other transfer is required to be made by or pursuant to the
terms hereof of such Security and, with respect to any other payment, deposit
or transfer pursuant to or contemplated by the terms hereof or such Security,
means Dollars.


 


“Default”
means any event which is, or after notice or passage of time or both would be,
an Event of Default.


 


“Defaulted
Interest” has the meaning specified in Section 3.07.


 


“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency
of the United States of America as at the time shall be legal tender for the
payment of public and private debts.


 


“Election
Date” has the meaning specified in Section 3.12(h).


 


“Euroclear”
means Euroclear Bank, Brussels Office, or its successor as operator of the
Euroclear System.


 


3

















 


“Event
of Default” has the meaning specified in Article Five.


 


“Exchange
Date” has the meaning specified in Section 3.04.


 


“Exchange
Rate Agent”, with respect to Securities of or within any series, means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01,
a New York Clearing House bank designated pursuant to Section 3.01 or Section 3.13.


 


“Exchange
Rate Officer’s Certificate” means a certificate setting forth (i) the
applicable Market Exchange Rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section 3.02
in the relevant Currency), payable with respect to a Security of any series on
the basis of such Market Exchange Rate or the applicable bid quotation signed
by the Chief Financial Officer or any Vice President of the Company.


 


“Foreign
Currency” means any Currency, including, without limitation, the euro
issued by the government of one or more countries other than the United States
of America or by any recognized confederation or association of such
governments.


 


“Generally
Accepted Accounting Principles” or “GAAP” means generally accepted
accounting principles in the United States, consistently applied, which are in
effect on the date of this Indenture.


 


“Government
Obligations” means securities which are (i) direct obligations of the
United States of America or the government which issued the Foreign Currency in
which the Securities of a particular series are payable, 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 of America or such government which issued the Foreign Currency
in which the Securities of such series are payable, the timely payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of
interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository 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 depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.


 


“Guarantee”
has the meaning specified in Section 16.02.


 


“Guarantor”
means a Subsidiary of the Company that executes a Guarantee pursuant to Section 16.02
hereof; provided that any Person constituting a Guarantor as described above
shall cease to constitute a Guarantor when its Guarantee is released in
accordance with the terms of this Indenture.


 


“Holder”
means, in the case of a Registered Security, the Person in whose name a
Security is registered in the Security Register and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.


 


“Indenture”
means 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, with respect to any
Security, shall include the terms of the particular 


 


4

















 


series of Security established as contemplated by Section 3.01;
provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, “Indenture” shall mean, with respect
to any one or more series of Securities for which 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 the or those 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.


 


“Indexed
Security” means a Security as to which all or certain interest payments
and/or the principal amount payable at Maturity are determined by reference to
prices, changes in prices, or differences between prices, of securities,
Currencies, intangibles, goods, articles or commodities or by such other
objective price, economic or other measures as are specified in Section 3.01
hereof.


 


“Interest”
means any interest specified in any Security as being payable with respect to
such Security and, when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 10.04,
includes such Additional Amounts.


 


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


 


“Junior
Subordinated Security” or “Junior Subordinated Securities” means any
Security or Securities designated pursuant to Section 3.01 as a Junior
Subordinated Security.


 


“Junior
Subordinated Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (a) indebtedness of the Company (including indebtedness
of others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed, which
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding it is provided that such indebtedness ranks junior in right of
payment to the Company’s Senior Indebtedness and Senior Subordinated
Indebtedness and equally and pari passu in
right of payment to any other Junior Subordinated Indebtedness, (b) Junior
Subordinated Securities, and (c) renewals, extensions, modifications and
refinancings of any such indebtedness.


 


“Market
Exchange Rate” means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving
a currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 3.01
for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency,
the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either New York
City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent. Unless
otherwise specified with respect to any Securities pursuant to Section 3.01,
in the event of the unavailability of any 


 


5

















 


of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its
sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or other
principal market for such currency or currency unit in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would purchase such currency or
currency unit in order to make payments in respect of such securities.


 


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


 


“Notice
of Default” has the meaning provided in Section 5.01.


 


“Officers’
Certificate” means a certificate signed by any of the Chairman, the Vice
Chairman, the Chief Executive Officer, the President or any Vice President, the
Chief Financial Officer, the Chief Operating Officer, the Secretary or an
Assistant Secretary, the Treasurer or an Assistant Treasurer of the Company,
and delivered to the Trustee.


 


“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company or who may be an employee of or other counsel for the Company.


 


“Original
Issue Discount Security” means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02.


 


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


 


(i)            Securities
theretofore cancelled by the Trustee or the Security Registrar or delivered to,
or accepted by, the Trustee or the Security Registrar for cancellation;


 


(ii)           Securities, or
portions thereof, for whose payment or redemption or repayment at the option of
the Holder 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 and any coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;


 


(iii)          Securities, except
to the extent provided in Sections 14.02 and 14.03, with respect to which the
Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen;


 


(iv)          Securities which
have been paid pursuant to Section 3.06 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, 


 


6

















 


other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a protected purchaser
in whose hands such Securities are valid obligations of the Company; and


 


(v)           Securities converted
or exchanged as contemplated herein into capital stock or other securities,
cash or other property, if the terms of such Securities provide for such
conversion or exchange pursuant to Section 3.01;


 


provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of
Holders for quorum purposes, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of an Original
Issue Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02,
(ii) the principal amount of any Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is originally issued by the
Company as set forth in an Exchange Rate Officer’s Certificate delivered to the
Trustee, of the principal amount (or, in the case of an Original Issue Discount
Security or Indexed Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i) above or (iii) below,
respectively) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 3.01,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.


 


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


 


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


 


“Place
of Payment”, when used with respect to the Securities of or within any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as
contemplated by Sections 3.01 and 10.02.


 


“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.


 


7

















 


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


 


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


 


“Registered
Security” means any Security which is registered in the Security Register.


 


“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Registered Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.01, whether or not a Business Day.


 


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


 


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


 


“Responsible
Officer”, when used with respect to the Trustee, means any officer of the
Trustee assigned by the Trustee to administer its corporate trust matters and
who shall have direct responsibility for the administration of this Indenture.


 


“Security”
or “Securities” has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.


 


“Security
Register” and “Security Registrar” have the respective meanings
specified in Section 3.05.


 


“Senior
Indebtedness” means the principal of (and premium, if any) and unpaid
interest on (a) indebtedness of the Company (including indebtedness of
others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed, unless
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding it is provided that such indebtedness is not senior or prior in
right of payment to Subordinated Indebtedness and (b) renewals,
extensions, modifications and refinancings of any such indebtedness.


 


“Senior
Security” or “Senior Securities” means any Security or Securities
designated pursuant to Section 3.01 as a Senior Security.


 


“Senior
Subordinated Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (a) indebtedness of the Company (including indebtedness
of others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed, which
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding it is provided that such indebtedness ranks junior in right of
payment to the Company’s Senior Indebtedness, equally and pari passu in right
of payment with all other Senior Subordinated Indebtedness and senior in right
of payment to any Junior Subordinated Indebtedness, (b) 


 


8

















 


Senior Subordinated Securities, and (c) renewals,
extensions, modifications and refinancings of any such indebtedness.


 


“Special
Record Date” for the payment of any Defaulted Interest on the Registered
Securities of or within any series means a date fixed by the Trustee pursuant
to Section 3.07.


 


“Stated
Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of principal
or interest is due and payable, as such date may be extended pursuant to the
provisions of Section 3.08.


 


“Subordinated
Indebtedness” means any Senior Subordinated Indebtedness or Junior
Subordinated Indebtedness.


 


“Subsidiary”
means any Person a majority of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries of
the Company. For the purposes of this definition, “voting stock” means stock
having voting power for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.


 


“Trust
Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed,
except as provided in Section 9.05.


 


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


 


“United
States” means, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.


 


“United
States person” means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, any individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust. Notwithstanding the preceding sentence, to
the extent provided in the Treasury regulations, certain trusts in existence on
August 20, 1996, and treated as United States persons prior to such date
that elect to continue to be treated as United States Persons, will also be
United States persons.


 


“Valuation
Date” has the meaning specified in Section 3.12(c).


 


“Yield
to Maturity” means the yield to maturity, computed at the time of issuance
of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.


 


9














 


Section 1.02         Compliance
Certificates and Opinions.


 


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


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 10.05)
shall include:


 


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


 


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


 


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


 


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


 


Section 1.03         Form of
Documents Delivered to Trustee.


 


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


 


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


 


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


 


10

















 


Section 1.04         Acts
of Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held , or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section.


 


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


 


(c)           The ownership of Registered
Securities shall be proved by the Security Register.


 


(d)           The ownership of Bearer Securities
may be proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer
Security is no longer Outstanding. The ownership of Bearer Securities may also
be proved in any other manner that the Trustee deems reasonably sufficient.


 


(e)           If the Company shall solicit from the
Holders of Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall 


 


11

















 


be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


(f)            Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.


 


Section 1.05         Notices,
Etc., to Trustee, Company and the Guarantors.


 


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


 


(1)           the Trustee by any Holder or by the
Company or any other obligor of the Securities shall be sufficient for every
purpose hereunder if made, given, furnished, filed or mailed, first-class
postage prepaid in writing to or with the Trustee at its Corporate Trust
Office, or


 


(2)           the Company or any Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this Indenture, to the
attention of its Secretary or at any other address previously furnished in
writing to the Trustee by the Company.


 


Section 1.06         Notice
to Holders; Waiver.


 


Where
this Indenture provides for notice of any event to Holders of Registered
Securities by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders of Registered Securities 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 of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.


 


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


 


12

















 


Except
as otherwise expressly provided herein or otherwise specified with respect to
any Securities pursuant to Section 3.01, where this Indenture provides for
notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.


 


If by
reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.


 


Any
request, demand, authorization, direction, notice, consent or waiver required
or permitted under this Indenture shall be in the English language, except that
any published notice may be in an official language of the country of
publication.


 


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


 


Section 1.07         Effect
of Headings and Table of Contents.


 


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


 


Section 1.08         Successors
and Assigns.


 


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


 


Section 1.09         Separability
Clause.


 


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


 


Section 1.10         Benefits
of Indenture.


 


Nothing
in this Indenture or in the Securities or coupons, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or claim under this
Indenture.


 


13

















 


Section 1.11         Governing
Law.


 


This
Indenture and the Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York. This Indenture is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.


 


Section 1.12         Legal
Holidays.


 


In any
case where any Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity,
as the case may be.


 


Section 1.13         Submission
to Jurisdiction.


 


The
Company hereby irrevocably submits to the non-exclusive jurisdiction of any New
York state or federal court sitting in The City of New York in any action or
proceeding arising out of or relating to the Indenture and the Securities of
any series, and the Company hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York state or federal court. The Company hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding.


 


Section 1.14         Conflict
with Trust Indenture Act.


 


If any
provision hereof limits, qualifies or conflicts with any provision of the Trust
Indenture Act or another provision which is required or deemed to be included
in this Indenture by any of the provisions of the Trust Indenture Act, the
provision or requirement of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.


 


Section 1.15         Counterparts.


 


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


 


14

















 


ARTICLE TWO




SECURITIES FORMS


 


Section 2.01         Forms
of Securities.


 


The
Registered Securities, if any, of each series and the Bearer Securities, if
any, of each series and related coupons, the temporary global Securities of
each series, if any, and the permanent global Securities of each series, if
any, to be endorsed thereon shall be in substantially in the form included in Exhibit A
or substantially in the forms as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 3.01, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture or any indenture supplemental hereto, 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 stock exchange on
which the Securities may be listed, or to conform to usage.


 


Unless
otherwise specified as contemplated by Section 3.01, Bearer Securities
shall have interest coupons attached.


 


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


 


Section 2.02         Form of
Trustee’s Certificate of Authentication.


 


Subject
to Section 6.11, the Trustee’s certificate of authentication shall be in
substantially the following form:


 


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


 


	
   

  	
  [                               ], as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
	
   

  	
   

  	
   

  



 


Section 2.03         Securities
Issuable in Global Form.


 


If
Securities of or within a series are issuable in global form, as specified as
contemplated by Section 3.01, then, notwithstanding clause (8) of Section 3.01
and the provisions of Section 3.02, any such Security shall represent such
of the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee or the Security Registrar in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 3.03
or 3.04. Subject to the provisions 


 


15

















 


of Section 3.03 and, if applicable, Section 3.04,
the Trustee or the Security Registrar shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement,
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel.


 


The
provisions of the last sentence of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee or the
Security Registrar the Security in global form together with written
instructions (which need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 3.03.


 


Notwithstanding
the provisions of Section 3.07, unless otherwise specified as contemplated
by Section 3.01, payment of principal of (and premium, if any) and
interest, if any, on any Security in permanent global form shall be made to the
Person or Persons specified therein.


 


Notwithstanding
the provisions of Section 3.09 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.


 


ARTICLE THREE



THE SECURITIES


 


Section 3.01         Amount
Unlimited; Issuable in Series.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.


 


The
Securities may be issued in one or more series and shall be designated as
Senior Securities, Senior Subordinated Securities or Junior Subordinated
Securities or any such other designation as shall be set forth in an amendment
or supplement hereto. Senior Securities are unsubordinated, shall rank equally
and pari passu with all of the Company’s Senior Indebtedness and senior to all
Subordinated Securities. Senior Subordinated Securities shall rank junior to
the Company’s Senior Indebtedness, equally and pari passu with all other Senior
Subordinated Indebtedness and senior to any Junior Subordinated Indebtedness.
Junior Subordinated Securities shall rank junior to the Company’s Senior
Indebtedness and any Senior Subordinated Indebtedness and equally and pari
passu with all other Junior Subordinated Indebtedness.  There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board
Resolutions and, subject to Section 3.03, set forth, or determined in the
manner provided, in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except for the
matters set forth in clauses (1), (2) and (15) below), if so provided, may
be determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):


 


16

















 


(1)           the title of the Securities of the
series including CUSIP numbers (which shall distinguish the Securities of such
series from all other series of Securities);


 


(2)           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 registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06,
11.07 or 13.05, and except for any Securities which, pursuant to Section 3.03,
are deemed never to have been authenticated and delivered hereunder);


 


(3)           the date or dates, or the method by
which such date or dates will be determined or extended, on which the principal
of the Securities of the series shall be payable;


 


(4)           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, 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 such interest will be payable
and the Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date shall
be determined, and the basis upon which such interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;


 


(5)           the place or places, if any, other
than or in addition to The City of New York where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for exchange,
where Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices or
demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;


 


(6)           the period or periods within which,
or the date or dates on which, the price or prices at which, the Currency or
Currencies in which, and other 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 the option;


 


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


 


(8)           if other than denominations of $1,000
and any integral multiple thereof, the denomination or denominations in which
any Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable;


 


(9)           if other than the Trustee, the
identity of each Security Registrar and/or Paying Agent;


 


(10)         if other than the principal amount
thereof, the portion of the principal amount of Securities of the series that
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, upon redemption of the Securities of the series
which are redeemable before their Stated Maturity, upon surrender for repayment
at the option of the Holder, or which the Trustee shall be entitled to claim
pursuant to Section 5.04 or the method by which such portion shall be
determined;


 


17














 


(11)         if other than Dollars, the Currency or
Currencies in which payment of the principal of (or premium, if any) or
interest, if any, on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 3.12;


 


(12)         whether the amount of payments of
principal of (or premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;


 


(13)         whether the principal of (or premium,
if any) or interest, if any, on the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in one or more Currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election Date), and
the terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency or Currencies
in which such Securities are denominated or stated to be payable and the
Currency or Currencies in which such Securities are to be paid, in each case in
accordance with, in addition to or in lieu of any of the provisions of Section 3.12;


 


(14)         provisions, if any, granting special
rights to the Holders of Securities of the series upon the occurrence of such
events as may be specified;


 


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


 


(16)         whether Securities of the series are to
be issuable as Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the series may
be exchanged for Registered Securities of the series and vice versa (if permitted
by applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form with or without coupons and
whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of interests
in any such permanent global Security may exchange such interests for
Securities of such series in certificated form and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 3.05,
whether Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and regulations),
whether Bearer Securities of the series may be exchanged for Registered
Securities of the series, and the circumstances under which and the place or
places where such exchanges may be made and if Securities of the series are to
be issuable as a global Security, the identity of the depository for such
series;


 


(17)         the date as of which any Bearer
Securities of the series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;


 


(18)         the Person to whom any interest on any
Registered Security of the series shall be payable, if other than the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary global
Security on an Interest 


 


18

















 


Payment Date will be paid
if other than in the manner provided in Section 3.04; and the extent to
which, or the manner in which, any interest payable on a permanent global
Security on an Interest Payment Date will be paid if other than in the manner
provided in Section 3.07;


 


(19)         the applicability, if any, of Sections
14.02 and/or 14.03 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of Article Fourteen;


 


(20)         if the Securities of such series are to
be issuable in definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and/or
terms of such certificates, documents or conditions;


 


(21)         whether, under what circumstances and
the Currency in which, the Company will pay Additional Amounts as contemplated
by Section 10.04 on the Securities of the series to any Holder who is not
a United States Person (including any modification to the definition of such
term) in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities rather than
pay such Additional Amounts (and the terms of any such option);


 


(22)         the designation of the initial Exchange
Rate Agent, if any;


 


(23)         if the Securities of the series are to
be issued upon the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;


 


(24)         if the Securities of the series are to
be convertible into or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such Securities will be so
convertible or exchangeable; and


 


(25)         any other terms of the series (which
terms shall not be inconsistent with the provisions of this Indenture or the
requirements of the Trust Indenture Act).


 


All
Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above (subject to Section 3.03)
and set forth in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.


 


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


 


Section 3.02         Denominations.


 


The
Securities of each series shall be issuable in such denominations as shall be
specified as contemplated by Section 3.01. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions with
respect to the Securities of any series, the Registered Securities of such
series, other than Registered Securities issued in global form (which may be of
any denomination) shall be issuable in denominations of $1,000 and any integral
multiple thereof, and the Bearer Securities 


 


19

















 


of such series, other than Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in a
denomination of $5,000.


 


Section 3.03         Execution, Authentication, Delivery and
Dating.


 


The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by any one of its Chairman, Vice Chairman, Chief Executive Officer,
President or any Vice President, Chief Financial Officer, Chief Operating
Officer, Secretary or an Assistant Secretary, Treasurer or an Assistant
Treasurer, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.


 


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


 


At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series, together with any coupon
appertaining thereto, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection
with its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in such
certificate as may be specified with respect to any series of Securities
pursuant to Section 3.01, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer Security,
then, for purposes of this Section and Section 3.04, the notation of
a beneficial owner’s interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary global Security shall be deemed to
be delivery in connection with its original issuance of such beneficial owner’s
interest in such permanent global Security. Except as permitted by Section 3.06,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,


 


(i)            an Opinion of Counsel
stating,


 


(a)           that
the form or forms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;


 


(b)           that
the terms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture; and


 


20

















 


(c)           that
such Securities, together with any coupons appertaining thereto, when completed
by appropriate insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors’ rights, to
general equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such
Securities and any coupons; and


 


(ii)           an Officers’
Certificate stating, to the best of the knowledge of the signers of such
certificate, that no Event of Default with respect to any of the Securities
shall have occurred and be continuing.


 


Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all the
Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers’ Certificate otherwise required pursuant to Section 3.01
or the Company Order, Opinion of Counsel or Officers’ Certificate otherwise
required pursuant to the preceding paragraph at the time of issuance of each
Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series.


 


If
such form or terms have been so established, the Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee’s own rights, duties, obligations or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. Notwithstanding the
generality of the foregoing, the Trustee will not be required to authenticate
Securities denominated in a Foreign Currency if the Trustee reasonably believes
that it would be unable to perform its duties with respect to such Securities.


 


Each
Registered Security shall be dated the date of its authentication and each
Bearer Security shall be dated as of the date specified as contemplated by Section 3.01.


 


No
Security or coupon shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security or
Security to which such coupon appertains a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee or an
Authenticating Agent by manual signature of an authorized signatory, 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. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 3.10
together with a written statement (which need not comply with Section 1.02
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.


 


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 which are 


 


21

















 


printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form, or, if authorized, in bearer form
with one or more coupons or without coupons, 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. In the case of Securities of any series, such
temporary Securities may be in global form.


 


Except
in the case of temporary Securities in global form (which shall be exchanged in
accordance with Section 3.04(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount and like tenor of definitive Securities of the
same series of authorized denominations; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive Bearer Security shall
be delivered in exchange for a temporary Bearer Security only in compliance
with the conditions set forth in Section 3.03. 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.


 


(b)           Unless otherwise provided in or
pursuant to a Board Resolution, this Section 3.04(b) shall govern the
exchange of temporary Securities issued in global form through the London
office of a depositary or common depositary (the “Common Depositary”),
for the benefit of Euroclear and Clearstream, for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).  If temporary
Securities of any series are issued in global form, any such temporary global
Security shall, unless otherwise provided therein, be delivered to the London
office of the Common Depositary, for the benefit of Euroclear and Clearstream,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).


 


Without
unnecessary delay but in any event not later than the date specified in, or
determined pursuant to the terms of, any such temporary global Security (the “Exchange
Date”), the Company shall deliver to the Trustee definitive Securities, in
aggregate principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange Date, such
temporary global Security shall be surrendered by the Common Depositary to the
Trustee, as the Company’s agent for such purpose, or to the Security Registrar,
to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security
to be exchanged. The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 3.01, and, if
any combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in
such temporary global Security, upon such presentation by the Common
Depositary, such temporary global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form as may be established
pursuant to Section 3.01; and 


 


22

















 


provided further that
definitive Bearer Securities shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements of Section 3.03.


 


Unless
otherwise specified in such temporary global Security, the interest of a
beneficial owner of Securities of a series in a temporary global Security shall
be exchanged for definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs Euroclear or
Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in such
form as may be established pursuant to Section 3.01, dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like unless
such Person takes delivery of such definitive Securities in person at the
offices of Euroclear or Clearstream. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.


 


Until
exchanged in full as hereinabove provided, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee or the applicable Paying Agent of a certificate or
certificates in the form as may be established pursuant to Section 3.01
for credit without further interest on or after such Interest Payment Date to
the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or Clearstream, as the case may be, a certificate dated
no earlier than 15 days prior to the Interest Payment Date occurring prior to
such Exchange Date in the form as may be established pursuant to Section 3.01.
Notwithstanding anything to the contrary herein contained, the certifications
made pursuant to this paragraph shall satisfy the certification requirements of
the preceding two paragraphs of this Section 3.04(b) and of the third
paragraph of Section 3.03 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal (or premium, if any) or interest, if
any, owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and Clearstream and not paid as herein
provided shall be returned to the Trustee or the applicable Paying Agent
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company.


 


Section 3.05         Registration, Transfer and Exchange.


 


The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust 


 


23

















 


Office, is hereby initially appointed “Security
Registrar” for the purpose of registering Registered Securities and transfers
of Registered Securities on such Security Register as herein provided, and for
facilitating exchanges of temporary global Securities for permanent global
Securities or definitive Securities, or both, or of permanent global Securities
for definitive Securities, or both, as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.


 


Upon
surrender for registration of transfer of any Registered Security of any series
at any office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized denominations and
of a like aggregate principal amount, bearing a number not contemporaneously
outstanding and containing identical terms and provisions.


 


At the
option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series, of any authorized denomination
or denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 3.01, Bearer Securities
may not be issued in exchange for Registered Securities.


 


If
(but only if) permitted by the applicable Board Resolution and (subject to Section 3.03)
set forth in the applicable Officers’ Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 3.01, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise
provided in Section 10.02, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.


 


24

















 


Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.


 


Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 3.01,
any permanent global Security shall be exchangeable only as provided in this
paragraph. If any beneficial owner of an interest in a permanent global
Security is entitled to exchange such interest for Securities of such series
and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 3.01 and provided
that any applicable notice provided in the permanent global Security shall have
been given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner’s interest in such
permanent global Security, executed by the Company. On or after the earliest
date on which such interests may be so exchanged, such permanent global
Security shall be surrendered by the Common Depositary or such other depositary
as shall be specified in the Company Order with respect thereto to the Trustee,
as the Company’s agent for such purpose, or to the Security Registrar, to be
exchanged, in whole or from time to time in part, for definitive Securities of
the same series without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such permanent global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the permanent global Security
shall be issuable only in the form in which the Securities are issuable, as
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed and ending
on the relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest, interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.


 


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 upon such registration of transfer or exchange.


 


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


 


25

















 


No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not
involving any transfer.


 


The
Company shall not be required (i) to issue, register the transfer of or
exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 11.03 and ending
at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.


 


Section 3.06         Mutilated, Destroyed, Lost and Stolen
Securities.


 


If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.


 


If
there shall be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a protected purchaser, the Company shall, subject to the following
paragraph, execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.


 


Notwithstanding
the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, with coupons corresponding to the coupons, if any, appertaining to
such mutilated, destroyed, lost or stolen Security or to the Security to which
such mutilated, destroyed, lost or stolen coupon appertains, pay such Security
or coupon, as the case may be; provided, however, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.02, be payable only at
an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, 


 


26

















 


any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.


 


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


 


Every
new Security of any series with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security
to which a destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon 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 and their coupons, if any, duly
issued hereunder.


 


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 or coupons.


 


Section 3.07         Payment of Interest; Interest Rights
Preserved; Optional Interest Reset.


 


(a)           Except as otherwise specified with
respect to a series of Securities in accordance with the provisions of Section 3.01,
interest, if any, on any Registered 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 that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 10.02; provided, however, that each
installment of interest, if any, on any Registered Security may at the Company’s
option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 3.09,
to the address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located in the United States.


 


Unless
otherwise provided as contemplated by Section 3.01 with respect to the
Securities of any series, payment of interest, if any, may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.


 


Unless
otherwise provided as contemplated by Section 3.01, every permanent global
Security will provide that interest, if any, payable on any Interest Payment
Date will be paid to each of Euroclear and Clearstream with respect to that
portion of such permanent global Security held for its account by the Common
Depositary, for the purpose of permitting each of Euroclear and Clearstream to
credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.


 


In
case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this Indenture.


 


27














 


Except
as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 3.01, any interest on any Registered
Security of any series 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 registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:


 


(1)           The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment (which shall not be less than 20
days after such notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) 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 on or
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of Registered Securities of such series at his address as it appears in the
Security Register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.


 


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


 


(b)           The
provisions of this Section 3.07(b) may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant 


 


28

















 


to such Section 3.01). The interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an “Optional
Reset Date”). The Company may exercise such option with respect to such
Security by notifying the Trustee of such exercise at least 45 but not more
than 60 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a
notice (the “Reset Notice”) indicating whether the Company has elected
to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new
interest rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity of such Security (each such period a “Subsequent
Interest Period”), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.


 


Notwithstanding
the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company may, at its option, revoke the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) provided for in
the Reset Notice and establish a higher interest rate (or a spread or spread
multiplier providing for a higher interest rate, if applicable) for the
Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 1.06, notice of such higher interest rate (or such
higher spread or spread multiplier providing for a higher interest rate, if
applicable) to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Securities
have not tendered such Securities for repayment (or have validly revoked any
such tender) pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier providing for a
higher interest rate, if applicable).


 


The
Holder of any such Security will have the option to elect repayment by the
Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days
prior to such Optional Reset Date and except that, if the Holder has tendered
any Security for repayment pursuant to the Reset Notice, the Holder may, by
written notice to the Trustee, revoke such tender or repayment until the close
of business on the tenth day before such Optional Reset Date.


 


Subject
to the foregoing provisions of this Section and Section 3.05, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


Section 3.08         Optional Extension of Maturity.


 


The
provisions of this Section 3.08 may be made applicable to any series of
Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01). The
Stated Maturity of any Security of such series may be extended at the option of
the Company for the period or periods specified on the face of such Security
(each an “Extension Period”) up to but not beyond the date (the “Final
Maturity”) set forth on the face of such Security. The Company may exercise
such option with respect to any Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to the Stated Maturity of
such Security in effect prior to the exercise of 


 


29

















 


such option (the “Original Stated Maturity”).
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of such Security not later
than 40 days prior to the Original Stated Maturity a notice (the “Extension
Notice”), prepared by the Company, indicating (i) the election of the
Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the
interest rate (or spread, spread multiplier or other formula to calculate such
interest rate, if applicable), if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee’s transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will
have the same terms as prior to the transmittal of such Extension Notice.


 


Notwithstanding
the foregoing, not later than 20 days before the Original Stated Maturity of
such Security, the Company may, at its option, revoke the interest rate (or
spread, spread multiplier or other formula to calculate such interest rate, if
applicable) provided for in the Extension Notice and establish a higher
interest rate (or spread, spread multiplier or other formula to calculate such
higher interest rate, if applicable) for the Extension Period by causing the
Trustee to transmit, in the manner provided for in Section 1.06, notice of
such higher interest rate (or spread, spread multiplier or other formula to
calculate such interest rate, if applicable) to the Holder of such Security.
Such notice shall be irrevocable. All Securities with respect to which the
Stated Maturity is extended will bear such higher interest rate.


 


If the
Company extends the Stated Maturity of any Security, the Holder will have the
option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Stated Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the
Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.


 


Section 3.09         Persons Deemed Owners.


 


Prior
to due presentment of a Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of
such Registered Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any,
on such Registered Security and for all other purposes whatsoever, whether or
not such Registered 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.


 


Title
to any Bearer Security and any coupons appertaining thereto shall pass by
delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon 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.


 


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


 


30

















 


Notwithstanding
the foregoing, with respect to any global temporary or permanent Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect
to such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.


 


Section 3.10         Cancellation.


 


All
Securities and coupons surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee, and any such Securities and coupons
and Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee in accordance with its customary procedures, unless by
a Company Order the Company directs the Trustee to deliver a certificate of
such destruction to the Company or to return them to the Company.


 


Section 3.11         Computation of Interest.


 


Except
as otherwise specified as contemplated by Section 3.01 with respect to
Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.


 


Section 3.12         Currency and Manner of Payments in
Respect of Securities.


 


(a)           Unless
otherwise specified with respect to any Securities pursuant to Section 3.01,
with respect to Registered Securities of any series not permitting the election
provided for in paragraph (b) below or the Holders of which have not made
the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded
with respect to any Securities pursuant to Section 3.01.


 


(b)           It
may be provided pursuant to Section 3.01 with respect to Registered
Securities of any series that Holders shall have the option, subject to paragraphs
(d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section 3.01,
not later than the close of business on the Election Date immediately preceding
the applicable payment date. If a Holder so elects to receive such payments in
any such Currency, such election will remain in effect for such Holder or any
transferee of such Holder until changed by such 


 


31

















 


Holder or such transferee by written notice to the
Trustee for such series of Registered Securities (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to
which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee of such series of Registered Securities not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as provided in Section 3.12(a).
The Trustee for each such series of Registered Securities shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.


 


(c)           Unless
otherwise specified pursuant to Section 3.01, if the election referred to
in paragraph (b) above has been provided for pursuant to Section 3.01,
then, unless otherwise specified pursuant to Section 3.01, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to
the Company a written notice specifying the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant
to Section 3.01 and if at least one Holder has made such election, then,
unless otherwise specified pursuant to Section 3.01, on the second
Business Day preceding such payment date the Company will deliver to the
Trustee for such series of Registered Securities an Exchange Rate Officer’s
Certificate in respect of the Dollar or Foreign Currency or Currencies payments
to be made on such payment date. Unless otherwise specified pursuant to Section 3.01,
the Dollar or Foreign Currency or Currencies amount receivable by Holders of
Registered Securities who have elected payment in a Currency as provided in
paragraph (b) above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the second Business Day (the “Valuation
Date”) immediately preceding each payment date, and such determination
shall be conclusive and binding for all purposes, absent manifest error.


 


(d)           If
a Conversion Event occurs with respect to a Foreign Currency in which any of
the Securities are denominated or payable other than pursuant to an election
provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the “Conversion
Date”), the Dollar shall be the currency of payment for use on each such
payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.


 


(e)           Unless
otherwise specified pursuant to Section 3.01, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid
in another Currency as provided in paragraph (b) above, and a Conversion
Event occurs with respect to such elected Currency, such Holder shall receive
payment in the Currency in which payment would have been made in the absence of
such 


 


32

















 


election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in the absence of
such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) of this Section 3.12.


 


(f)            The
“Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange
Rate Agent and shall be obtained for each subsequent payment date by converting
the specified Foreign Currency into Dollars at the Market Exchange Rate on the
Conversion Date.


 


(g)           The
“Dollar Equivalent of the Currency Unit” shall be determined by the Exchange
Rate Agent and subject to the provisions of paragraph (h) below shall be
the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.


 


(h)           For
purposes of this Section 3.12, the following terms shall have the
following meanings:


 


A “Component Currency” shall mean any currency
which, on the Conversion Date, was a component currency of the relevant
currency unit.


 


A “Specified Amount” of a Component Currency
shall mean the number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit on the Conversion Date. If
after the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are consolidated
into a single currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single currency equal to the
sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount shall thereafter
be a Specified Amount and such single currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be divided
into two or more currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the date of
such replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before such
division, and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, a Conversion Event (other than any event
referred to above in this definition of “Specified Amount”) occurs with respect
to any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.


 


An “Election Date” shall mean the Regular
Record Date for the applicable series of Registered Securities or at least 16
days prior to Maturity, as the case may be, or such other prior date for any
series of Registered Securities as specified pursuant to clause 13 of Section 3.01
by which the written election referred to in Section 3.12(b) may be
made.


 


All
decisions and determinations of the Exchange Rate Agent regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit,
the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the 


 


33

















 


relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee for the appropriate
series of Securities of any such decision or determination.


 


In the
event that the Company determines in good faith that a Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof to the Trustee of the appropriate series of Securities
and to the Exchange Rate Agent (and such Trustee will promptly thereafter give
notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a
Conversion Event has occurred with respect to any currency unit in which
Securities are denominated or payable, the Company will immediately give
written notice thereof to the Trustee of the appropriate series of Securities
and to the Exchange Rate Agent (and such Trustee will promptly thereafter give
notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event the Company determines in good
faith that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee of the appropriate series of Securities and
to the Exchange Rate Agent.


 


The
Trustee of the appropriate series of Securities shall be fully justified and
protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.


 


Section 3.13         Appointment and Resignation of
Successor Exchange Rate Agent.


 


(a)           Unless
otherwise specified pursuant to Section 3.01, if and so long as the
Securities of any series (i) are denominated in a Foreign Currency or (ii) may
be payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified
pursuant to Section 3.01 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 3.12.


 


(b)           No
resignation of the Exchange Rate Agent and no appointment of a successor
Exchange Rate Agent pursuant to this Section shall become effective until
the acceptance of appointment by the successor Exchange Rate Agent as evidenced
by a written instrument delivered to the Company and the Trustee of the
appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.


 


(c)           If
the Exchange Rate Agent shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Exchange Rate Agent for any
cause, with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Exchange
Rate Agent or Exchange Rate Agents with respect to the Securities of that or
those series (it being understood that any such successor Exchange Rate Agent
may be appointed with respect to the Securities of one or more or all of such
series and that, unless otherwise specified pursuant to Section 3.01, at
any time there shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by the Company
on the same date and that are initially denominated and/or payable in the same
Currency).


 


34

















 


Section 3.14         CUSIP Numbers.


 


The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall indicate the respective “CUSIP” numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of 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 shall
advise the Trustee as promptly as practicable in writing of any change in the
CUSIP numbers.


 


ARTICLE FOUR



SATISFACTION AND DISCHARGE


 


Section 4.01         Satisfaction and Discharge of
Indenture.


 


Except
as set forth below, this Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and any right to receive Additional Amounts, as provided in Section 10.04),
and the Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when


 


(1)           either


 


(A)          all
Securities of such series theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 3.05, (ii) Securities and coupons of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, (iii) coupons
appertaining to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section 11.06,
and (iv) Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or


 


(B)           all
Securities of such series and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation


 


(i)            have become due and
payable, or


 


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


 


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


 


35

















 


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


 


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


 


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


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any predecessor
Trustee under Section 6.06, the obligations of the Company to any
Authenticating Agent under Section 6.12 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive any termination of this
Indenture.


 


Section 4.02         Application of Trust Funds.


 


Subject
to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.


 


ARTICLE FIVE



REMEDIES


 


Section 5.01         Events of Default.


 


“Event
of Default”, wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether or not it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless it is either inapplicable to a particular series or
is specifically deleted or modified in or pursuant to the supplemental
indenture or a Board Resolution establishing such series of Securities or is in
the form of Security for such series:


 


(1)           default
in the payment of any interest upon any Security of that series or of any
coupon appertaining thereto, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or


 


(2)           default
in the payment of the principal of (or premium, if any) any Security of that
series and continues for a period of five days after Maturity; or


 


36

















 


(3)           default
in the deposit of any sinking fund payment, when and as due by the terms of any
Security of that series and such default is not cured within five days; or


 


(4)           default
in the performance, or breach, of any covenant or agreement of the Company in
this Indenture with respect to any Security of that series (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 33 1/3% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a “Notice of Default”
hereunder;


 


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


 


(A)          commences
a voluntary case or proceeding under any Bankruptcy Law,


 


(B)           consents
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or files a petition or answer or consent seeking reorganization or relief
against it,


 


(C)           consents
to the entry of a decree or order for relief against it in an involuntary case
or proceeding,


 


(D)          consents
to the filing of such petition or to the appointment of or taking possession by
a Custodian of the Company or for all or substantially all of its property, or


 


(E)           makes
an assignment for the benefit of creditors, or admits in writing of its
inability to pay its debts generally as they become due or takes any corporate
action in furtherance of any such action; or


 


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


 


(A)          is
for relief against the Company in an involuntary case or proceeding, or


 


(B)           adjudges
the Company bankrupt or insolvent, or approves as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company, or


 


(C)           appoints
a Custodian of the Company or for all or substantially all of its property, or


 


(D)          orders
the winding up or liquidation of the Company,


 


and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or


 


(7)           any
other Event of Default provided with respect to Securities of that series.


 


37














 


The
term “Bankruptcy Law” means title 11, U.S. Code or any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law. The term “Custodian”
means any custodian, receiver, trustee, assignee, liquidator, sequestrator or
other similar official under any Bankruptcy Law.


 


Section 5.02         Acceleration of Maturity; Rescission
and Annulment.


 


If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 33 1/3% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become
immediately due and payable.


 


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


 


(1)           the
Company has paid or deposited with the Trustee a sum sufficient to pay in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and
3.12(e)):


 


(A)          all overdue
installments of interest, if any, on all Outstanding Securities of that series
and any related coupons,


 


(B)           the
principal of (and premium, if any) all Outstanding Securities of that series
which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for in such
Securities,


 


(C)           to the
extent that payment of such interest is lawful, interest upon overdue installments
of interest at the rate or rates borne by or provided for in such Securities,
and


 


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


 


(2)           all
Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of (or premium, if any) or interest on Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.


 


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


 


Section 5.03         Collection of Indebtedness and Suits
for Enforcement by Trustee.


 


The
Company covenants that if:


 


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


 


38

















 


(2)           default
is made in the payment of the principal of (or premium, if any) any Security of
any series and continues for a period of five days after Maturity,


 


then the Company will, upon demand of the Trustee, pay
to the Trustee, for the benefit of the Holders of Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons
for principal (and premium, if any) and interest, if any, with interest upon
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


If the
Company fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities of such
series, wherever situated.


 


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


 


Section 5.04         Trustee May File Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


 


(i)            to file and prove a claim for the
whole amount of principal (or in the case of Original Issue Discount Securities
or Indexed Securities, such portion of the principal as may be provided for in
the terms thereof) (and premium, if any) and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and


 


(ii)           to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same;


 


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of such series and
coupons to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable 


 


39

















 


compensation, expenses, disbursements and advances of
the Trustee and any predecessor Trustee, their agents and counsel, and any
other amounts due the Trustee or any predecessor Trustee under Section 6.06.


 


Subject
to Article Eight and Section 9.02 and unless otherwise provided as
contemplated by Section 3.01, nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or coupon in any such proceeding.


 


Section 5.05         Trustee May Enforce Claims Without
Possession of Securities or Coupons.


 


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


 


Section 5.06         Application of Money Collected.


 


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


 


FIRST:  To the
payment of all amounts due the Trustee and any predecessor Trustee under Section 6.06;


 


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


 


THIRD:  To the
payment of the remainder, if any, to the Company or any other Person or Persons
entitled thereto.


 


Section 5.07         Limitation on Suits.


 


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


 


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


 


40

















 


(2)           the
Holders of not less than 33 1/3% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


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


 


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


 


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


 


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


 


Section 5.08         Unconditional Right of Holders to
Receive Principal, Premium and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of
the principal of (and premium, if any) and (subject to Sections 3.05 and 3.07)
interest, if any, on such Security or payment of such coupon on the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment at the option
of the Holders on the Repayment Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.


 


Section 5.09         Restoration of Rights and Remedies.


 


If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.


 


Section 5.10         Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


41

















 


Section 5.11         Delay or Omission Not Waiver.


 


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


 


Section 5.12         Control by Holders of Securities.


 


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


 


(1)           such
direction shall not be in conflict with any rule of law or with this
Indenture,


 


(2)           the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and


 


(3)           the
Trustee need not take any action which might involve it in personal liability
or be unjustly prejudicial to the Holders of Securities of such series not
consenting.


 


Section 5.13         Waiver of Past Defaults.


 


Subject
to Section 5.02, the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series and any related coupons waive any past
default hereunder with respect to Securities of such series and its
consequences, except a default


 


(1)           in
the payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or any related coupons, or


 


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


 


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


 


Section 5.14         Waiver of Stay or Extension Laws.


 


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


 


42

















 


ARTICLE SIX



THE TRUSTEE


 


Section 6.01         Duties of Trustee and Notice of
Defaults.


 


Subject
to the provisions of Trust Indenture Act Section 315(a) through
315(d):


 


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


 


(b)           except
during the continuance of a Default or an Event of Default:


 


(1)           the Trustee need perform only those
duties as are specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the Trustee;
and


 


(2)           in the absence of bad faith or
willful misconduct on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.


 


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


 


(1)           this subsection (c) does not
limit the effect of subsection (b) of this Section 6.01;


 


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


 


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


 


(d)           no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.


 


(e)           whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to subsections (a), (b), (c) and
(d) of this Section 6.01.


 


43

















 


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


 


Within
90 days after the occurrence of any Default hereunder with respect to the
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in TIA Section 313(c), notice of such Default hereunder
known to the Trustee, unless such Default shall have been cured or waived; provided,
however, that, except in the case of a Default in the payment of the
principal of (or premium, if any) or interest, if any, on any Security of such
series, or in the payment of any sinking or purchase fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders of the Securities and coupons of such series; and provided further
that in the case of any Default or breach of the character specified in Section 5.01(4) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof.


 


Section 6.02         Certain Rights of Trustee.


 


Subject
to Section 6.01 and the provisions of TIA Section 315(a) through
315(d):


 


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


 


(2)           Any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order (other than delivery of any
Security, together with any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 3.03 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.


 


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


 


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


 


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


 


(6)           The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee 


 


44

















 


shall determine to make such further inquiry or investigation, it shall
be entitled upon reasonable notice and at reasonable times during normal
business hours to examine the books, records and premises of the Company,
personally or by agent or attorney.


 


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


 


(8)           The
Trustee shall not deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.


 


(9)           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.


 


(10)         The
permissive rights of the Trustee enumerated herein shall not be construed as
duties.


 


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


 


The
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


Section 6.03         Not Responsible for Recitals or
Issuance of Securities.


 


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


 


Section 6.04         May Hold Securities.


 


The
Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.


 


45

















 


Section 6.05         Money Held in Trust.


 


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


 


Section 6.06         Compensation and Reimbursement and
Indemnification of Trustee.


 


The
Company agrees:


 


(1)           To
pay to the Trustee or any predecessor Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as has been agreed upon
from time to time in writing (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust).


 


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


 


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


 


As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.


 


When
the Trustee incurs expenses or renders services after an Event of Default specified
in Section 5.01 occurs, the expenses and compensation for such services
are intended to constitute expenses of administration under Title 11, U.S.
Code, or any similar Federal, State or analogous foreign law for the relief of
debtors.


 


The
provisions of this Section 6.06 shall survive the resignation or removal
of the Trustee and the satisfaction, termination or discharge of this
Indenture.


 


Section 6.07         Corporate Trustee Required;
Eligibility.


 


There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $150,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


46














 


Section 6.08         Disqualification; Conflicting
Interests.


 


If the
Trustee has or shall acquire a conflicting interest within the meaning 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.


 


Section 6.09         Resignation and Removal; Appointment of
Successor.


 


(a)           No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10.


 


(b)           The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company.


 


(c)           The
Trustee may be removed at any time with respect to the Securities of any series
by (i) the Company, by an Officers’ Certificate delivered to the Trustee,
provided that contemporaneously therewith (x) the Company immediately
appoints a successor Trustee with respect to the Securities of such series
meeting the requirements of Section 6.07 hereof and (y) the terms of Section 6.10
hereof are complied with in respect of such appointment (the Trustee being removed
hereby agreeing to execute the instrument contemplated by Section 6.10(b) hereof,
if applicable, under such circumstances) and provided further that no Default with respect to such
Securities shall have occurred and then be continuing at such time, or (ii) Act
of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Trustee and to the Company.


 


(d)           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 of a Security who has
been a bona fide Holder of a Security for at least six months, or


 


(2)           the Trustee shall
cease to be eligible under Section 6.07 and shall fail to resign after
written request therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months, 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 or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder
of a Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.


 


(e)           If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of a notice of
resignation or the delivery of an Act of removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the appointment
of a successor Trustee.


 


47

















 


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


 


(g)           The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 1.06. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.


 


Section 6.10         Acceptance of Appointment by Successor.


 


(a)           In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 6.06.


 


(b)           In
case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate 


 


48

















 


and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Whenever there is a successor
Trustee with respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall
have the meanings specified in the provisos to the respective definition of
those terms in Section 1.01 which contemplate such situation.


 


(c)           Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.


 


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


 


Section 6.11         Merger, Conversion, Consolidation or
Succession to Business.


 


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


 


Section 6.12         Appointment of Authenticating Agent.


 


At any
time when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents acceptable to the Company (which may be an
Affiliate or Affiliates of the Company) with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee’s certificate of authentication, such reference shall be deemed to
include 


 


49

















 


authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and, except as may otherwise be provided
pursuant to Section 3.01, 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 of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $150,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


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


 


An
Authenticating Agent for any series of Securities may at any time resign by
giving written notice of resignation to the Trustee for such series and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee for such series may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall promptly give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve in the manner set forth in Section 1.06.
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
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation including reimbursement of its reasonable expenses for its
services under this Section.


 


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


 


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


 


	
   

  	
  [                               ], as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authenticating
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  	
   

  



 


50

















 


If all
of the Securities of a series may not be originally issued at one time, and the
Trustee does not have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the Company wishes to
have Securities of such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing need not
comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel), shall appoint in accordance with this Section an Authenticating
Agent (which, if so requested by the Company, shall be an Affiliate of the
Company) having an office in a Place of Payment designated by the Company with
respect to such series of Securities, provided that the terms and conditions of
such appointment are acceptable to the Trustee.


 


ARTICLE SEVEN



HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.01         Disclosure of Names and Addresses of
Holders.


 


In
accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee


 


(1)           semi-annually
with respect to Securities of each series not later than January 15 and July 15
of the year or upon such other dates as are set forth in or pursuant to the
Board Resolution or indenture supplemental hereto authorizing such series, a
list, in each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and


 


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


 


provided, however, that so long as the Trustee is the
Security Registrar no such list shall be required to be furnished.


 


Section 7.02         Preservation of Information;
Communications to Holders.


 


The
Trustee shall comply with the obligations imposed upon it pursuant to Section 312
of the Trust Indenture Act.


 


Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company, the Trustee, any Paying Agent
or any Security Registrar shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders of
Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust
Indenture Act.


 


Section 7.03         Reports by Trustee.


 


Within
60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit by mail to all Holders of 


 


51

















 


Securities as provided in TIA Section 313(c) a
brief report dated as of such May 15 which meets the requirements of TIA Section 313(a).


 


A copy
of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange, if any, upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee of the listing of the Securities on any stock
exchange.  The Trustee also will comply
with TIA Section 313(b)(2).


 


Section 7.04         Reports by Company.


 


The
Company will:


 


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


 


(2)           file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and


 


The
Trustee shall transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.


 


Section 7.05         Calculation of Original Issue Discount.


 


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


 


Section 7.06         Preferential Collection of Claims Against
Company.


 


The
Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.


 


52

















 


ARTICLE EIGHT



CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER


 


Section 8.01         Company May Consolidate, Etc.,
Only on Certain Terms.


 


The
Company shall not consolidate with or merge with or into any other corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:


 


(1)           the
successor entity or entities, each of which shall be a Corporation organized
and existing under the laws of any state of the United States of America or the
District of Columbia, any country comprising the European Union, the United
Kingdom or Japan shall expressly assume, by an indenture (or indentures, if at
such time there is more than one Trustee) supplemental hereto executed by the
successor Person and delivered to the Trustee, the due and punctual payment of
the principal of, any premium and interest on and any Additional Amounts with
respect to all the Securities and the performance of every obligation in this
Indenture and the Outstanding Securities on the part of the Company to be
performed or observed and shall provide for conversion or exchange rights in
accordance with the provisions of the Securities of any series that are
convertible or exchangeable into Common Stock or other securities, cash or
other property and if any such successor entity is not subject to the
jurisdiction of any state of the United States of America or the District of
Columbia, such entity submits to jurisdiction for all purposes with respect to
the Securities and appoints an agent for service of process in the United
States of America;


 


(2)           immediately
after giving effect to such transaction or series of transactions, no Event of
Default or event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and


 


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


 


Notwithstanding
the foregoing, the Company may consolidate with, or merge with or into, an
Affiliate incorporated for the purpose of incorporating in another jurisdiction
of the United States of America or any State thereof or the District of
Columbia without complying with the requirement of paragraph (2) above.


 


Notwithstanding
the foregoing (a) the Company may convey, transfer or lease all or
substantially all of its properties and assets as an entirety to any Subsidiary
or Subsidiaries, in one transaction or a series of related transactions and (b) the
transfer by the Company, in a single transaction or series of transactions, of
all or substantially all of its cash, cash equivalents and marketable
securities of non-Affiliates for which the Company receives fair market value,
as determined by its Board of Directors, will not constitute a sale of all or
substantially all of the Company’s assets.


 


Section 8.02         Successor Person Substituted.


 


Upon
any consolidation or merger, or any conveyance or transfer of the properties
and assets of the Company substantially as an entirety in accordance with Section 8.01,
the successor corporation formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance or transfer
is made shall succeed to, and be substituted for, and may exercise every right 


 


53

















 


and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company herein; and in
the event of any such conveyance or transfer, the Company shall be discharged
from all obligations and covenants under this Indenture and the Securities and
coupons and may be dissolved and liquidated.


 


ARTICLE NINE



SUPPLEMENTAL INDENTURES


 


Section 9.01         Supplemental Indentures Without Consent
of Holders.


 


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


 


(1)           to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities
contained; or


 


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


 


(3)           to
add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such Events of Default are to be for the
benefit of less than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit of such series); provided,
however, that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate principal amount of
that or those series of Securities to which such additional Events of Default
apply to waive such default; or


 


(4)           to
add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium or interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or


 


(5)           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 Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision; or


 


(6)           to
secure the Securities; or


 


54

















 


(7)           to
establish the form or terms of Securities of any series and any related coupons
as permitted by Sections 2.01 and 3.01, including the provisions and procedures
relating to Securities convertible into or exchangeable for any securities of
any Person (including the Company); or


 


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


 


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


 


(10)         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 pursuant to Sections 4.01, 14.02 and 14.03; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of such series and any related coupons or any other series of
Securities in any material respect.


 


Section 9.02         Supplemental Indentures with Consent of
Holders.


 


With
the consent of the Holders of not less than a majority in aggregate principal
amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affects such series of Securities or of
modifying in any manner the rights of the Holders of such series of Securities
and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:


 


(1)           change
the Stated Maturity of the principal of (or premium, if any) or any installment
of principal of or interest on, any Security, subject to the provisions of Section 3.08;
or the terms of any sinking fund with respect to any Security; or reduce the
principal amount thereof or the rate of interest (or change the manner of
calculating the rate of interest, thereon, or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay Additional
Amounts pursuant to Section 10.04 (except as contemplated by Section 8.01(1) and
permitted by Section 9.01(1)), or reduce the portion of the principal of
an Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02,
or upon the redemption thereof or the amount thereof provable in bankruptcy
pursuant to Section 5.04, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of Payment where,
or the Currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
or repayment at the option of the Holder, on or after the Redemption Date or
the Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section 3.01
herein, or


 


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


 


55

















 


(3)           modify
any of the provisions of this Section or Section 5.13, 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 of a
Security or coupon with respect to changes in the references to “the Trustee”
and concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.10(b) and 9.01(8).


 


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


 


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


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to consent to
such supplemental indenture, whether or not such Holders remain Holders after
such record date; provided, that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.


 


Section 9.03         Execution of Supplemental Indentures.


 


In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, in addition to the documents required
by Section 1.02 of this Indenture, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


Section 9.04         Effect of Supplemental Indentures.


 


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


 


Section 9.05         Conformity with Trust Indenture Act.


 


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


 


56














 


Section 9.06         Reference
in Securities to Supplemental Indentures.


 


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


 


ARTICLE TEN


 


COVENANTS


 


Section 10.01       Payment
of Principal, Premium, if any, and Interest.


 


The
Company covenants and agrees for the benefit of the Holders of each series of
Securities and any coupons appertaining thereto that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Any interest
due on Bearer Securities on or before Maturity, other than Additional Amounts,
if any, payable as provided in Section 10.04 in respect of principal of
(or premium, if any) such a Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 3.01, at the
option of the Company, all payments of principal may be paid by check to the
registered Holder of the Security or other person entitled thereto against
surrender of such Security.


 


Section 10.02       Maintenance
of Office or Agency.


 


If
Securities of a series are issuable only as Registered Securities, the Company
shall maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange, where Securities of that series
that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served
and where Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of that series pursuant
to Section 10.04); provided, however, that if the Securities
of that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United 


 


57

















 


States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of each such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities 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, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to Section 10.04)
at the offices specified in the Security, and the Company hereby appoints the
same as its agent to receive such respective presentations, surrenders, notices
and demands, and the Company hereby appoints the Trustee its agent to receive
all such presentations, surrenders, notices and demands.


 


Unless
otherwise specified with respect to any Securities pursuant to Section 3.01,
no payment of principal, premium or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to any account maintained
with a financial institution located in the United States; provided, however,
that, if the Securities of a series are denominated and payable in Dollars,
payment of principal of (and premium, if any) and interest, if any, on any
Bearer Security (including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 10.04) shall be made at the
office of the Company’s Paying Agent in The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, if any,
interest or Additional Amounts, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to Section 3.01
with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in The City of New York and as its agent
to receive all such presentations, surrenders, notices and demands.


 


Unless
otherwise specified with respect to any Securities pursuant to Section 3.01,
if and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other
than Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.


 


Section 10.03       Money
for Securities Payments to Be Held in Trust.


 


If the
Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each
due date of the principal of (or premium, if any) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum in the Currency in which the Securities
of such series are payable 


 


58

















 


(except as otherwise specified pursuant to Section 3.01
for the Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the principal
(and premium, if any) and interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents for any series of Securities
and any related coupons, it will, on or before each due date of the principal
of (or premium, if any) or interest, if any, on any Securities of that series,
deposit with a Paying Agent a sum (in the Currency or Currencies described in
the preceding paragraph) sufficient to pay the principal (or premium, if any)
or interest, if any, so becoming due, such sum of money to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.


 


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


 


Except
as otherwise provided in the Securities of any series, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such money held
in trust, 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 an Authorized Newspaper, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.


 


Section 10.04       Additional
Amounts.


 


If the
Securities of a series provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series or any coupon
appertaining thereto such Additional Amounts as may be specified as
contemplated by Section 3.01. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest, if any, on any Security of any series or payment of any related
coupon or the net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such series established
pursuant to Section 3.01 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such terms
and express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.


 


Except
as otherwise specified as contemplated by Section 3.01, if the Securities
of a series provide for the payment of Additional Amounts, at least 10 days
prior to the first Interest Payment Date 


 


59

















 


with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first
day on which a payment of principal premium is made), and at least 10 days
prior to each date of payment of principal, premium or interest if there has
been any change with respect to the matters set forth in the below-mentioned
Officers’ Certificate, the Company will furnish the Trustee and the Company’s
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers’ Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal, premium or interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers’ Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent
the Additional Amounts required by the terms of such Securities. In the event
that the Trustee or any Paying Agent, as the case may be, shall not so receive
the above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required
with respect to any payment of principal or interest with respect to any
Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal
and interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers’
Certificate furnished pursuant to this Section or in reliance on the
Company’s not furnishing such an Officers’ Certificate.


 


Section 10.05       Statement
as to Compliance.


 


(a)           The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year ending after the
date hereof so long as any Security is Outstanding hereunder, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer of the Company as to his or her knowledge of
the Company’s compliance with all conditions and covenants under this
Indenture. For purposes of this Section 10.05, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.


 


Section 10.06       Corporate
Existence.


 


Subject
to Article Eight, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect the corporate existence
and related rights and franchises (charter and statutory) of the Company and
each of its Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right or franchise or the corporate existence of
any such Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and provided,
further, however, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary of the Company or any of its assets in compliance
with the terms of this Indenture.


 


Section 10.07       Waiver
of Certain Covenants.


 


The
Company may omit in any particular instance to comply with any covenants of the
Company added to Article Ten pursuant to Section 3.01(14) or Section 3.01(15)
in connection with the Securities of a series, if before or after the time for
such compliance the Holders of at least a majority in aggregate 


 


60

















 


principal amount of all Outstanding Securities of such
series, by Act of such Holders, either waive such compliance in such instance
or generally waive 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, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.


 


ARTICLE ELEVEN


 


REDEMPTION OF SECURITIES


 


Section 11.01       Applicability
of Article.


 


Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance
with this Article.


 


Section 11.02       Election
to Redeem; Notice to Trustee.


 


The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of Securities
of such series to be redeemed, and, if applicable, of the tenor of the
Securities to be redeemed, and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 11.03. In the case of any redemption of Securities of
any series prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with such restriction.


 


Section 11.03       Selection
by Trustee of Securities to Be Redeemed.


 


If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series issued on such date with the
same terms not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate; provided that such method complies with
the rules of any national securities exchange or quotation system on which
the Securities are listed, and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized
denomination for Securities of that series; provided, however,
that no such partial redemption shall reduce the portion of the principal
amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series.


 


The
Trustee shall promptly notify the Company and the Security Registrar (if other
than itself) in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.


 


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 which has been or is to be redeemed.


 


61

















 


Section 11.04       Notice
of Redemption.


 


Notice
of redemption shall be given in the manner provided in Section 1.06, not
less than 30 days nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified by the terms of such series established pursuant to
Section 3.01, to each Holder of Securities to be redeemed, but failure to
give such notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Security or portion thereof.


 


Any
notice that is mailed to the Holders of Registered Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice.


 


All
notices of redemption shall state:


 


(1)           the Redemption Date,


 


(2)           the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section 11.06,


 


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


 


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


 


(5)           that on the Redemption Date, the
Redemption Price and accrued interest, if any, to the Redemption Date payable
as provided in Section 11.06 will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after said date,


 


(6)           the Place or Places of Payment where
such Securities, together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest, if any,


 


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


 


(8)           that, unless otherwise specified in
such notice, Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee for such series and any Paying Agent is furnished,


 


(9)           if Bearer Securities of any series
are to be redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant to Section 3.05
or otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and


 


(10)         the CUSIP number of such Security, if
any.


 


62

















 


A
notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed 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.


 


Section 11.05       Deposit
of Redemption Price.


 


On or
prior to 10:00 am, New York City time, on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, which it may not do in the case of a sinking
fund payment under Article Twelve, segregate and hold in trust as provided
in Section 10.03) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (unless
otherwise specified pursuant to Section 3.01) accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.


 


Section 11.06       Securities
Payable on Redemption Date.


 


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series and except, if applicable, as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall if the same were interest-bearing cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be redeemed, except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice, together
with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified as contemplated
by Section 3.01, only upon presentation and surrender of coupons for such
interest; and provided further that, unless otherwise specified as
contemplated by Section 3.01, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.


 


If any
Bearer Security surrendered for redemption shall not be accompanied by all
appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which
a deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in Section 10.02)
and, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.


 


63

















 


If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the Redemption Price shall, until paid, bear interest from the
Redemption Date at the rate of interest set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield to Maturity of such
Security.


 


Section 11.07       Securities
Redeemed in Part.


 


Any
Registered Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge a new Security or Securities of the same series
and of like tenor, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a temporary global
Security or permanent global Security is so surrendered, such new Security so
issued shall be a new temporary global Security or permanent global Security,
respectively. However, if less than all the Securities of any series with
differing issue dates, interest rates and stated maturities are to be redeemed,
the Company in its sole discretion shall select the particular Securities to be
redeemed and shall notify the Trustee in writing thereof at least 45 days prior
to the relevant redemption date.


 


Section 11.08       Repurchases
on the Open Market.


 


The
Company or any Affiliate of the Company may at any time or from time to time
repurchase any of the Securities in the open market or otherwise. Such
Securities may, at the option of the Company or the relevant Affiliate of the
Company, be held, resold or surrendered to the Trustee for cancellation.


 


ARTICLE TWELVE


 


SINKING FUNDS


 


Section 12.01       Applicability
of Article.


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.


 


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 such Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.


 


Section 12.02       Satisfaction
of Sinking Fund Payments with Securities.


 


The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have 


 


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been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities; provided
that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable 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.


 


Section 12.03       Redemption
of Securities for Sinking Fund.


 


Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so delivered
and credited. If such Officers’ Certificate shall specify an optional amount to
be added in cash to the next ensuing mandatory sinking fund payment, the
Company shall thereupon be obligated to pay the amount therein specified. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.06 and 11.07.


 


ARTICLE THIRTEEN


 


REPAYMENT AT THE OPTION OF HOLDERS


 


Section 13.01       Applicability
of Article.


 


Repayment
of Securities of any series before their Stated Maturity at the option of
Holders thereof shall be made in accordance with the terms of such Securities
and (except as otherwise specified by the terms of such series established
pursuant to Section 3.01) in accordance with this Article.


 


Section 13.02       Repayment
of Securities.


 


Securities
of any series subject to repayment in whole or in part at the option of the
Holders thereof will, unless otherwise provided in the terms of such
Securities, be repaid at the Repayment Price thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that on or before 10:00 am, New
York City time, on the Repayment Date it will deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.03) an amount of money in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and
3.12(e)) sufficient to pay the Repayment Price of, and (unless otherwise
specified pursuant to Section 3.01) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.


 


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Section 13.03       Exercise of Option.


 


Securities
of any series subject to repayment at the option of the Holders thereof will
contain an “Option to Elect Repayment” form on the reverse of such Securities.
To be repaid at the option of the Holder, any Security so providing for such
repayment, with the “Option to Elect Repayment” form on the reverse of such
Security duly completed by the Holder (or by the Holder’s attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire Repayment Price of such Security is to
be repaid in accordance with the terms of such Security, the portion of the
Repayment Price of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.


 


Section 13.04       When Securities Presented for Repayment
Become Due and Payable.


 


If
Securities of any series providing for repayment at the option of the Holders
thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and
on and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if
the same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if
any, appertaining thereto maturing after the Repayment Date, the Repayment
Price of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided, however,
that coupons whose Stated Maturity is on or prior to the Repayment Date shall
be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.02) and, unless otherwise
specified pursuant to Section 3.01, only upon presentation and surrender
of such coupons; and provided further
that installments of interest on Registered Securities, whose Stated Maturity
is prior to (or, if specified pursuant to Section 3.01, on) the Repayment
Date shall be payable (but without interest thereon, unless the Company shall
default in the payment thereof) to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.07.


 


If any
Bearer Security surrendered for repayment shall not be accompanied by all
appurtenant coupons maturing after the Repayment Date, such Security may be
paid after deducting from the amount payable therefor as provided in Section 13.02
an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency 


 


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located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified as contemplated
by Section 3.01, only upon presentation and surrender of those coupons.


 


If any
Security surrendered for repayment shall not be so repaid upon surrender
thereof, the Repayment Price shall, until paid, bear interest from the
Repayment Date at the rate of interest set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield to Maturity of such
Security.


 


Section 13.05       Securities Repaid in Part.


 


Upon
surrender of any Registered Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, and of
like tenor, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid. If a
temporary global Security or permanent global Security is so surrendered, such
new Security so issued shall be a new temporary global Security or a new
permanent global Security, respectively.


 


ARTICLE FOURTEEN



DEFEASANCE AND COVENANT DEFEASANCE


 


Section 14.01       Applicability of Article; Company’s
Option to Effect Defeasance or Covenant Defeasance.


 


If
pursuant to Section 3.01 provision is made for either or both of (a) defeasance
of the Securities of or within a series under Section 14.02 or (b) covenant
defeasance of the Securities of or within a series under Section 14.03,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 3.01 with
respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have either Section 14.02 (if applicable)
or Section 14.03 (if applicable) be applied to such Outstanding Securities
and any coupons appertaining thereto upon compliance with the conditions set
forth below in this Article.


 


Section 14.02       Defeasance and Discharge.


 


Upon
the Company’s exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 14.04 are satisfied (hereinafter, “defeasance”).
For this purpose, such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by such
Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 14.05
and the other Sections of this Indenture referred to in clauses (A) and (B) of
this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 14.04 and as more fully
set forth in such Section, payments in respect of the principal 


 


67

















 


of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due, (B) the
Company’s obligations with respect to such Securities under Sections 3.05,
3.06, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 10.04, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise
of its option under Section 14.03 with respect to such Securities and any
coupons appertaining thereto. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.


 


Section 14.03       Covenant Defeasance.


 


Upon
the Company’s exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall be released
from its obligations under any covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 14.04 are satisfied (hereinafter, “covenant
defeasance”), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such other covenant, but shall continue to be
deemed “Outstanding” for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such Section or such
other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 5.01(4) or
5.01(7) or otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby. Following a covenant
defeasance, payment of such Securities may not be accelerated because of an
Event of Default solely by reference to such Sections specified above in this Section 14.03.


 


Section 14.04       Conditions to Defeasance or Covenant
Defeasance.


 


The
following shall be the conditions to application of either Section 14.02
or Section 14.03 to any Outstanding Securities of or within a series and
any coupons appertaining thereto:


 


(a)           The
Company shall have irrevocably deposited or caused to be irrevocably deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.07
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for the benefit of, and
dedicated solely to, the Holders of such Securities and any coupons
appertaining thereto, (1) an amount (in such Currency in which such
Securities and any coupons appertaining thereto are then specified as payable
at Stated Maturity), or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
Currency in which such Securities and coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal
of (and premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated 


 


68

















 


Maturity
of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.


 


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


 


(c)           No
Default or Event of Default with respect to such Securities and any coupons
appertaining thereto shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 5.01(5) and 5.01(6) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).


 


(d)           In
the case of an election under Section 14.02, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred.


 


(e)           In
the case of an election under Section 14.03, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.


 


(f)            The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to either the
defeasance under Section 14.02 or the covenant defeasance under Section 14.03
(as the case may be) have been complied with and an Opinion of Counsel to the
effect that either (i) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company’s option under Section 14.02 or Section 14.03
(as the case may be), registration is not required under the Investment Company
Act of 1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.


 


(g)           Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance
shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.01.


 


Section 14.05       Deposited Money and Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.


 


Subject
to the provisions of the last paragraph of Section 10.03, all money and
Government Obligations (or other property as may be provided pursuant to Section 3.01)
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 14.05, the “Trustee”)
pursuant to Section 14.04 in respect of any Outstanding Securities of any
series and 


 


69

















 


any coupons appertaining thereto shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities and any coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
if any, but such money need not be segregated from other funds except to the
extent required by law.


 


Unless
otherwise specified with respect to any Security pursuant to Section 3.01,
if, after a deposit referred to in Section 14.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 14.04(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or
3.12(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 14.04(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any) and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by converting
(from time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the
Currency in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable Market Exchange Rate for such Currency
in effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such Currency in effect (as nearly as
feasible) at the time of the Conversion Event.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the money or Government Obligations
deposited pursuant to Section 14.04 or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.


 


Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or
Government Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 14.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.


 


ARTICLE FIFTEEN



[SUBORDINATION OF SECURITIES]


 


Section 15.01       Agreement to Subordinate.


 


The
Company, for itself, its successors and assigns, covenants and agrees, and each
Holder of Senior Subordinated Securities by his 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 Senior Subordinated
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.


 


The
Company, for itself, its successors and assigns, covenants and agrees, and each
Holder of Junior Subordinated Securities by his 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 Junior Subordinated 


 


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Securities is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness and Senior Subordinated
Indebtedness.


 


Section 15.02       Distribution on Dissolution, Liquidation
and Reorganization; Subrogation of Subordinated Securities.


 


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):


 


(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 Subordinated Securities are entitled to receive any payment
upon the principal (or premium, if any) or interest, if any, on indebtedness
evidenced by the Subordinated Securities; and


 


(b)           the
holders of all Senior Subordinated 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 Junior Subordinated Securities are entitled
to receive any payment upon the principal (or premium, if any) or interest, if
any, on indebtedness evidenced by the Junior Subordinated Securities; and


 


(c)           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 Fifteen
shall be paid by the liquidating 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


 


(d)           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, shall be received by the Trustee or the Holders of the Subordinated
Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over, upon written notice to the Trustee, to the holder
of such Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, 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.


 


Subject
to the payment in full of all Senior Indebtedness, the Holders of the
Subordinated Securities shall be subrogated to the rights of the holders 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 Subordinated Securities
shall be paid in full and no such payments or distributions to the Holders of
the Subordinated Securities of cash, property or 


 


71

















 


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 Subordinated Securities
be deemed to be a payment by the Company to or on account of the Subordinated
Securities. It is understood that the provisions of this Article Fifteen
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Subordinated Securities, on the one hand, and the holders of
the Senior Indebtedness, on the other hand. Nothing contained in this Article Fifteen
or elsewhere in this Indenture or in the Subordinated 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 Subordinated Securities, the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the Subordinated Securities the principal of (and premium, if any)
and interest, if any, on the Subordinated 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 Subordinated Securities and creditors of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or in the Subordinated Securities prevent the Trustee or the Holder of
any Subordinated Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Fifteen 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 Fifteen, the Trustee, subject to the
provisions of Section 6.01, shall be entitled to 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 thereon and all other facts pertinent thereto or to this Article Fifteen.


 


If the
Trustee or any Holder of Subordinated Securities does not file a proper claim
or proof of debt in the form required in any proceeding referred to above prior
to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Indebtedness is hereby authorized,
and has the right, to file an appropriate claim or claims for or on behalf of
such Holder of Subordinated Securities.


 


With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee. The Trustee does not owe any fiduciary
duties to the holders of Securities other than Securities issued under this
Indenture.


 


Section 15.03       No Payment on Subordinated Securities in
Event of Default on Senior Indebtedness.


 


No
payment by the Company on account of principal (or premium, if any), sinking
funds or interest, if any, on the Subordinated Securities shall be made unless
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.


 


Section 15.04       Payments on Subordinated Securities
Permitted.


 


Nothing
contained in this Indenture or in any of the Subordinated 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 Subordinated Securities or (b) prevent
the application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on 


 


72

















 


the Subordinated Securities, unless the Trustee shall
have received at its Corporate Trust Office written notice of any event
prohibiting the making of such payment more than three Business Days prior to
the date fixed for such payment.


 


Section 15.05       Authorization of Holders to Trustee to
Effect Subordination.


 


Each
Holder of Subordinated Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Fifteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.


 


Section 15.06       Notices to Trustee.


 


Notwithstanding
the provisions of this Article 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
event which would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate Trust Office)
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; provided, however, that if at least
three Business Days prior to the date upon which by the terms hereof any such
moneys 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 Subordinated Security) the Trustee shall not have received with respect to
such moneys 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 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 three 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 Fifteen, 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 Fifteen 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.


 


The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article Fifteen 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 Section 6.13 or elsewhere in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.


 


Nothing
in this Article Fifteen shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.


 


73














 


Section 15.08       Modifications of Terms of Senior
Indebtedness.


 


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 Subordinated 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 Fifteen or of the
Subordinated Securities relating to the subordination thereof.


 


Section 15.09       Reliance on Judicial Order or Certificate
of Liquidating Agent.


 


Upon
any payment or distribution of assets of the Company referred to in this Article Fifteen,
the Trustee and the Holders of the Securities shall be entitled to 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
Subordinated 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 Fifteen.


 


ARTICLE SIXTEEN



GUARANTEES


 


Section 16.01       Guarantee.


 


Subject
to the provisions of this Article Sixteen, each Guarantor in respect of
the Securities hereby jointly and severally unconditionally guarantees, [on a
senior unsecured basis], to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors, irrespective of
(i) the validity and enforceability of this Indenture, the Securities or
the obligations of the Company or any other Guarantors to the Holders of the
Securities or the Trustee hereunder or thereunder or (ii) the absence of
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or default of a Guarantor, that: (a) the
principal of, premium, if any, interest, if any, with respect to the Securities
shall be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, with respect to the Securities and
all other obligations of the Company or any Guarantor to the Holders of the
Securities or the Trustee hereunder or thereunder and all other obligations
under this Indenture with respect to the Securities or the Securities shall be
promptly paid in full or performed, all in accordance with the terms of this
Indenture and thereof and (b) in case of any extension of time of payment
or renewal of any Securities or any of such other obligations, the same shall
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so Guaranteed, or failing
performance of any other obligation of the Company to the Holders of the
Securities, for whatever reason, each Guarantor shall be obligated to pay, or
to perform or cause the 


 


74

















 


performance of, the same immediately. An Event of
Default under this Indenture or the Securities shall constitute an event of
default under the Guarantee, and shall entitle the Holders of Securities or the
Trustee to accelerate the obligations of the Guarantors of such Securities
hereunder in the same manner and to the same extent as the obligations of the
Company.


 


Each
Guarantor, by execution of the Guarantee, waives the benefit of diligence,
presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenant that such Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
such Guarantee. The Guarantee is a guarantee of payment and not of collection.


 


If any
Holder or the Trustee is required by any court or otherwise to return to the
Company or to any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or such Guarantor, any
amount paid by the Company or such Guarantor to the Trustee or such Holder of
the Securities, the Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of the Securities and the Trustee,
on the other hand, (a) subject to this Article Sixteen, the maturity
of the obligations guaranteed hereby may be accelerated for the purposes of the
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (b) in
the event of any acceleration of such obligations, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of such Guarantee.


 


The
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or
reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all
or any significant part of the Company’s assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Securities are pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities, whether as a “voidable
preference,” “fraudulent transfer” or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.


 


No
shareholder, officer, director, employee or incorporator, past, present or
future, or any Guarantor, as such, shall have any personal liability under this
Guarantee by reason of his, her or its status as such shareholder, officer,
director, employee or incorporator.


 


Section 16.02       Execution and Delivery of Guarantee.


 


To
further evidence the Guarantee set forth in Section 16.01 of this
Indenture, each Guarantor hereby agrees that a notation of such Guarantee,
substantially in the form included in Exhibit B to this Indenture (the “Guarantee”),
shall be endorsed on each Security authenticated and delivered by the Trustee
after this Article Seventeen with respect to such Guarantor becomes
effective in accordance with Section 16.01 of this Indenture and such
Guarantee shall be executed by either manual or facsimile signature of an
officer of each Guarantor. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.


 


75

















 


Each
of the Guarantors hereby agrees that its Guarantee set forth in Section 16.01
of this Indenture shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee.


 


If an
officer of a Guarantor whose signature is on this Indenture or a Guarantee no
longer holds that office at the time the Trustee authenticates the Security on
which such Guarantee is endorsed or at any time thereafter, such Guarantor’s
Guarantee of such Security shall be valid nevertheless.


 


The
delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of any Guarantee set forth in this
Indenture on behalf of the Guarantor.


 


Section 16.03       Limitation of Guarantee.


 


The
obligations of each Guarantor are limited to the maximum amount as shall, after
giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, result in the obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal
or state law.


 


Section 16.04       Waiver of Subrogation.


 


Each
Guarantor, by execution of its Guarantee, waives to the extent permitted by law
any claim or other rights which it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or enforcement of
such Guarantor’s obligations under such Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of the Securities against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment on account of such claim or other rights. If any amount shall
be paid to any Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Securities, and shall forthwith be paid to
the Trustee for the benefit of such Holders to be credited and applied upon the
Securities, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor, by execution of its Guarantee, shall acknowledge
that it shall receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in
this Section 16.04 is knowingly made in contemplation of such benefits.


 


Section 16.05       Release of Guarantee.


 


The
Guarantee of a Guarantor will be released:


 


(a)           in
connection with any sale or other disposition of all of the stock of such
Guarantor to a Person other than the Company or any Subsidiary of the Company;


 


(b)           in
connection with the sale or other disposition of all or substantially all of
the assets of such Guarantor, including by way of merger, consolidation or
otherwise, to a Person other than the Company or any Subsidiary of the Company;


 


76

















 


(c)           upon
the release or discharge of the guarantee of such Subsidiary of Indebtedness of
the Company and each Guarantor which resulted in the obligation to Guarantee
the Securities; or


 


(d)           in
connection with the liquidation, dissolution or winding-up of a Guarantor, if
such liquidation, dissolution or winding-up complies with the provisions of
this Indenture.


 


Section 16.06       Contribution from Other Guarantors.


 


Each
Guarantor that makes a payment or distribution under its Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the net assets of each Guarantor, determined in accordance with GAAP, so
long as the exercise of such right does not impair the rights of Holders of
Securities under any Guarantee.


 


* * * * *


 


77

















 


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


 


	
   

  	
  GRIFFON CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CLOPAY BUILDING
  PRODUCTS

  
	
   

  	
  COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CLOPAY PLASTIC PRODUCTS

  
	
   

  	
  COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TELEPHONICS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [

  	
                                                           ]

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


78














 


EXHIBIT A


 


FORM OF
DEBT SECURITY


 


GRIFFON
CORPORATION


 


	
  No.

  	
  CUSIP
  No.    

  



 


[      ]
NOTES DUE [              ]


 


Griffon Corporation, a Delaware corporation, for
value received, hereby promises to pay to [              ],
or its registered assigns, $[               ],
on [            ].


 


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


 


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


 


IN WITNESS WHEREOF, the Company has caused this
Security to be fully executed.


 


Dated:


 


	
   

  	
  GRIFFON CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  



 


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


 


	
   

  	
   

  
	
  [                   ],
  as Trustee, certifies that this is one of the Securities referred to in the
  Indenture.

  	
   

  



 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-1

















 


REVERSE
SIDE OF FORM OF DEBT SECURITY

GRIFFON CORPORATION


 


1.             Indenture.


 


This Security is one of a duly authorized issue of
debt securities of the Company (as defined below) designated as its “[                    ]
Notes due [               ]”
(herein called the “Securities”), issued under an indenture dated as of [              ]
(as amended or supplemented from time to time, the “Indenture”) between the
Company, the Guarantors and [           ],
as trustee (the “Trustee,” which term includes any successor Trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantors, Trustee and each Holder of Securities and of the
terms upon which the Securities are, and are to be, authenticated and
delivered.  The summary of the terms of
this Security contained herein does not purport to be complete and is qualified
by reference to the Indenture.  All terms
used in this Security which are not defined herein shall have the same meanings
assigned to them in the Indenture.


 


2.             Principal and Interest.


 


Griffon Corporation, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture, being herein
called the “Company”), promises to pay $[ ] to the Holder hereof on [          ].


 


[Describe interest payment mechanisms].


 


3.             Method of Payment.


 


The Company, through the Paying Agent, shall pay
interest on this Security to the registered Holder of this Security, as
provided above.  The Holder must
surrender this Security to a Paying Agent to collect principal payments.  The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of all debts public and private.  Principal and interest will be payable at the
office of the Paying Agent but, at the option of the Company, interest may be
paid by check mailed to the registered Holders at their registered addresses.


 


4.             Transfer Agent, Paying Agent and
Registrar.


 


Initially, [      ]
will act as Transfer Agent, Paying Agent and Registrar under the
Indenture.  The Company may, upon written
notice to the Paying Agent and Trustee, appoint and change any Transfer Agent,
Paying Agent or Registrar.  The Company
or any of its subsidiaries may act as Transfer Agent, Paying Agent or
Registrar.


 


5.             Redemption.


 


[Describe redemption mechanics, if any.]


 


A-2

















 


6.             Transfer and Exchange.


 


A Holder may transfer a Security upon the surrender
of such Security for registration of transfer. 
No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of this transfer in the Security Register by the Registrar.  When Securities are presented to the
Registrar with a request to register the transfer of, or to exchange, such
Securities, the Registrar shall register the transfer or make such exchange as
requested if its requirements for such transactions and any applicable
requirements hereunder are satisfied.


 


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


 


7.             Denominations.


 


The Securities are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof of
principal amount.


 


8.             Unclaimed Money.


 


If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its request unless an abandoned property law
designates another Person.  After any
such payment, Holders entitled to the money must look only to the Company and
not to the Trustee for payment unless such abandoned property law designates
another Person.


 


9.             Discharge and Defeasance.


 


Subject to certain conditions, the Company at any
time may terminate some or all of its obligations under the Securities and the
Indenture if the Company irrevocably deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.


 


10.           Amendment, Waiver.


 


Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities and (ii) any past Default and its
consequences may be waived with the written consent of the Holders of at least
a majority in principal amount of the Outstanding Securities except a default (1) in
the payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or any related coupons, or (2) in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected.  Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder of Securities,
the Company and the Trustee may amend the Indenture or the Securities (i) to
evidence the succession of another Person to the Company and the assumption by
such successor of the covenants of the company under the Indenture and
contained in the Securities; (ii) to add additional covenants of the
Company for the benefit of the Holders or to surrender rights and powers
conferred on the Company; (iii) to add any additional Events of Default; (iv) to
provide for uncertificated Securities in addition to or in place of
Certificated Securities; (v) to change or eliminate any of the provisions
of the Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of the amended indenture which is entitled to the 


 


A-3

















 


benefit of such provision; (vi) to
secure the Securities; (vii) to establish the form or terms of Securities
of any series and any related coupons; (viii) to evidence and provide for
the acceptance of appointment under the Indenture of a successor Trustee; (ix) to
cure any ambiguity in the Indenture, to correct or supplement any provision in
the Indenture which may be inconsistent with any other provision therein or to
add any other provisions with respect to matters or questions arising under the
Indenture, provided that such actions shall not adversely affect the interests
of the Holders in any material respect; or (x) to supplement any of the
provisions of the Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of Securities, provided
that such actions shall not adversely affect the interests of the Holder in any
material respect.


 


11.           Defaults and Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 

33 1/3% in principal amount of the Outstanding Securities, subject to certain
limitations, may declare all the Securities to be immediately due and
payable.  Certain events of bankruptcy or
insolvency are Events of Default and shall result in the Securities being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.


 


Holders of Securities may not enforce the Indenture
or the Securities except as provided in the Indenture.  The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.  Subject to certain limitations, Holders of a
majority in principal amount of the Outstanding Securities may direct the
Trustee in its exercise of any trust or power under the Indenture.  The Holders of a majority in principal amount
of the Outstanding Securities, by written notice to the Company and the
Trustee, may rescind any declaration of acceleration and its consequences if
the rescission would not conflict with any judgment or decree, and if all
Events of Default have been cured or waived except nonpayment of principal and
interest that has become due solely because of the acceleration.


 


12.           Individual Rights of Trustee.


 


Subject to certain limitations imposed by the Trust
Indenture Act, the Trustee or any Paying Agent or Registrar, in its individual
or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee, Paying Agent or Registrar, as the case may be,
under the Indenture.


 


13.           No Recourse Against Certain Others.


 


No director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Company. 
By accepting a Security, each Holder waives and releases all such
liability (but only such liability) as part of the consideration for issuance
of such Security to such Holder.


 


14.           Governing Law.


 


The Indenture and the Securities and coupons shall
be governed by and construed in accordance with the law of the State of New
York. The Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of the Indenture and shall, to the extent
applicable, be governed by such provisions.


 


A-4

















 


The Company will furnish to any Holder of Securities
upon written request and without charge to the Holder a copy of the Indenture
which has in it the text of this Security. 
Requests may be made to:


 


Griffon
Corporation


100
Jericho Quadrangle


Jericho,
New York 11753


Attention:
Chief Financial Officer


 


A-5

















 


ASSIGNMENT


 


(To
be executed by the registered Holder

if such Holder desires to transfer this Security)


 


FOR VALUE RECEIVED                                                           
hereby sells, assigns and transfers unto


 


PLEASE INSERT SOCIAL SECURITY OR OTHER TAX
IDENTIFYING NUMBER OF TRANSFEREE


 


                                                


 


                                                                                                                                                            

(Please print name and address of transferee)


 


                                                                                                                                                                                     

this Security, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint
                                            
Attorney to transfer this Security on the Security Register, with full power of
substitution.


 


Dated:                                        


 


 




	
   

  	
   

  	
   

  
	
  Signature of Holder

  	
   

  	
  Signature Guaranteed:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commercial Bank or Trust Company

  
	
   

  	
   

  	
  Or Member Firm of the New York

  
	
   

  	
   

  	
  Stock Exchange, Inc.

  






 


 


NOTICE: The signature to the foregoing Assignment must
correspond to the Name as written upon the face of this Security in every
particular, without alteration or any change whatsoever.


 


SIGNATURE GUARANTEE


 


Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”)
or such other “signature guarantee program” as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.


 


A-6

















 


EXHIBIT B


 


FORM OF GUARANTEE


 


Each
of the undersigned (the “Guarantors”) hereby jointly and severally
unconditionally guarantees, to the extent set forth in the Indenture dated as
of [           ], 2009,
by and between Griffon Corporation, as issuer, the Guarantors and [                 ],
as Trustee, (the “Indenture”), and subject to the provisions of the Indenture, (a) the
due and punctual payment of the principal of, and premium, if any, and interest
on the of Securities, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on overdue principal of, and premium and, to the extent permitted
by law, interest, and the due and punctual performance of all other obligations
of the Company to the Holders of the of Securities or the Trustee, all in
accordance with the terms set forth in Article Seventeen of the Indenture
and (b) in case of any extension of time of payment or renewal of any
Securities or any of such other obligations, that the same shall be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.


 


The
obligations of the Guarantors to the Holders of the Securities of and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Sixteen of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Guarantee. The validity
and enforceability of any Guarantee shall not be affected by the fact that it
is not affixed to any particular Security.


 


This
Guarantee has been executed and issued pursuant to the requirements of the
Indenture.


 


[Signatures on
Following Pages]


 


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IN
WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be signed
by a duly authorized officer.


 


	
   

  	
  The Guarantors:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLOPAY BUILDING
  PRODUCTS 

  
	
   

  	
  COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLOPAY PLASTIC PRODUCTS

  
	
   

  	
  COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELEPHONICS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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