Exhibit
4.1


 


THE
MANITOWOC COMPANY, INC.


 


to


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION,


 


As
Trustee


 


INDENTURE


 


Dated
as of February 8, 2010


 


Debt
Securities


 

















 


TABLE OF CONTENTS*


 


	
   

  	
   

  	
  Page

  
	
  Parties

  	
   

  	
  1

  
	
  Recitals

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1. DEFINITIONS

  	
  1

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2. DEBT
  SECURITY FORMS

  	
  9

  
	
  SECTION 2.01.

  	
  Forms Generally

  	
  9

  
	
  SECTION 2.02.

  	
  Forms of Debt Securities

  	
  9

  
	
  SECTION 2.03.

  	
  Form of Trustee’s Certificate of Authentication

  	
  10

  
	
  SECTION 2.04.

  	
  Debt Securities in Global Form

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3. THE DEBT
  SECURITIES

  	
  12

  
	
  SECTION 3.01.

  	
  Title and Terms

  	
  12

  
	
  SECTION 3.02.

  	
  Denominations

  	
  14

  
	
  SECTION 3.03.

  	
  Payment of Principal and Interest

  	
  14

  
	
  SECTION 3.04.

  	
  Execution of Debt Securities

  	
  14

  
	
  SECTION 3.05.

  	
  Temporary Debt Securities

  	
  16

  
	
  SECTION 3.06.

  	
  Exchange and Registration of Transfer of Debt
  Securities

  	
  16

  
	
  SECTION 3.07.

  	
  Mutilated, Destroyed, Lost or Stolen Debt Securities

  	
  18

  
	
  SECTION 3.08.

  	
  Payment of Interest; Interest Rights Preserved

  	
  19

  
	
  SECTION 3.09.

  	
  Persons Deemed Owners

  	
  20

  
	
  SECTION 3.10.

  	
  Cancellation of Debt Securities Paid, etc.

  	
  20

  
	
  SECTION 3.11.

  	
  Currency and Manner of Payments

  	
  20

  
	
  SECTION 3.12.

  	
  CUSIP Numbers

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4. REDEMPTION
  OF DEBT SECURITIES; SINKING FUNDS

  	
  22

  
	
  SECTION 4.01.

  	
  Applicability of Article

  	
  22

  
	
  SECTION 4.02.

  	
  Notice of Redemption; Selection of Debt Securities

  	
  22

  
	
  SECTION 4.03.

  	
  Payment of Debt Securities Called for Redemption

  	
  23

  
	
  SECTION 4.04.

  	
  Exclusion of Certain Debt Securities from
  Eligibility for Selection for Redemption

  	
  24

  
	
  SECTION 4.05.

  	
  Provisions with Respect to any Sinking Funds

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5. PARTICULAR
  COVENANTS OF THE COMPANY

  	
  26

  
	
  SECTION 5.01.

  	
  Payment of Principal, Premium and Interest

  	
  26

  
	
  SECTION 5.02.

  	
  Offices for Notices and Payments, etc.

  	
  26

  
	
  SECTION 5.03.

  	
  Appointments to Fill Vacancies in Trustee’s Office

  	
  26

  



 






* This table of contents shall not, for any
purpose, be deemed to be a part of the Indenture.


 


i

















 


	
  SECTION 5.04.

  	
  Provisions as to Paying Agent

  	
  26

  
	
  SECTION 5.05.

  	
  Certificate to Trustee

  	
  27

  
	
  SECTION 5.06.

  	
  Waivers of Covenants

  	
  27

  
	
  SECTION 5.07.

  	
  Calculation of Original Issue Discount

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6. HOLDERS’ LISTS AND REPORTS BY THE COMPANY
  AND THE TRUSTEE

  	
   

  
	
  SECTION 6.01.

  	
  Holders’ Lists

  	
  28

  
	
  SECTION 6.02.

  	
  Preservation and Disclosure of Lists

  	
  28

  
	
  SECTION 6.03.

  	
  Reports by the Company

  	
  28

  
	
  SECTION 6.04.

  	
  Reports by the Trustee

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7. REMEDIES OF
  THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT

  	
   

  
	
  SECTION 7.01.

  	
  Events of Default

  	
  29

  
	
  SECTION 7.02.

  	
  Payment of Debt Securities Upon Default; Suit
  Therefor

  	
  31

  
	
  SECTION 7.03.

  	
  Application of Moneys Collected by Trustee

  	
  33

  
	
  SECTION 7.04.

  	
  Proceedings by Holders

  	
  34

  
	
  SECTION 7.05.

  	
  Proceedings by Trustee

  	
  34

  
	
  SECTION 7.06.

  	
  Remedies Cumulative and Continuing

  	
  35

  
	
  SECTION 7.07.

  	
  Direction of Proceedings and Waiver of Defaults by
  Majority of Holders

  	
  35

  
	
  SECTION 7.08.

  	
  Notice of Defaults

  	
  35

  
	
  SECTION 7.09.

  	
  Undertaking to Pay Costs

  	
  36

  
	
  SECTION 7.10.

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8. CONCERNING
  THE TRUSTEE

  	
   

  
	
  SECTION 8.01.

  	
  Duties and Responsibilities of Trustee

  	
  36

  
	
  SECTION 8.02.

  	
  Reliance on Documents, Opinions, etc.

  	
  37

  
	
  SECTION 8.03.

  	
  No Responsibility for Recitals, etc.

  	
  39

  
	
  SECTION 8.04.

  	
  Trustee and Agents May Own Debt Securities

  	
  39

  
	
  SECTION 8.05.

  	
  Moneys to be Held in Trust

  	
  39

  
	
  SECTION 8.06.

  	
  Compensation and Expenses of Trustee

  	
  39

  
	
  SECTION 8.07.

  	
  Officers’ Certificate as Evidence

  	
  40

  
	
  SECTION 8.08.

  	
  Conflicting Interest of Trustee

  	
  40

  
	
  SECTION 8.09.

  	
  Eligibility of Trustee

  	
  40

  
	
  SECTION 8.10.

  	
  Resignation or Removal of Trustee

  	
  41

  
	
  SECTION 8.11.

  	
  Acceptance by Successor Trustee

  	
  42

  
	
  SECTION 8.12.

  	
  Succession by Merger, etc.

  	
  43

  
	
  SECTION 8.13.

  	
  Limitation on Rights of Trustee as a Creditor

  	
  43

  
	
  SECTION 8.14.

  	
  Authenticating Agents

  	
  43

  
	
  SECTION 8.15.

  	
  Preferential Collection of Claims Against the
  Company

  	
  46

  
	
  SECTION 8.16.

  	
  Trustee’s Application for Instructions from the
  Company

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9. CONCERNING
  THE HOLDERS

  	
   

  
	
  SECTION 9.01.

  	
  Action by Holders

  	
  46

  



 


ii

















 


	
  SECTION 9.02.

  	
  Proof of Execution by Holders

  	
  46

  
	
  SECTION 9.03.

  	
  Who Are Deemed Absolute Owners

  	
  47

  
	
  SECTION 9.04.

  	
  Company-Owned Debt Securities Disregarded

  	
  47

  
	
  SECTION 9.05.

  	
  Revocation of Consents; Future Holders Bound

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10. SUPPLEMENTAL INDENTURES

  	
   

  
	
  SECTION 10.01.

  	
  Supplemental Indentures without Consent of Holders

  	
  48

  
	
  SECTION 10.02.

  	
  Supplemental Indentures with Consent of Holders

  	
  49

  
	
  SECTION 10.03.

  	
  Effect of Supplemental Indentures

  	
  50

  
	
  SECTION 10.04.

  	
  Notation on Debt Securities

  	
  50

  
	
  SECTION 10.05.

  	
  Evidence of Compliance of Supplemental Indenture to
  be Furnished Trustee

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11. CONSOLIDATION, MERGER, SALE AND
  CONVEYANCE

  	
   

  
	
  SECTION 11.01.

  	
  Company May Consolidate, etc., on Certain Terms

  	
  51

  
	
  SECTION 11.02.

  	
  Successor Entity to be Substituted

  	
  51

  
	
  SECTION 11.03.

  	
  Opinion of Counsel to Be Given Trustee

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12. SATISFACTION AND DISCHARGE OF INDENTURE

  	
   

  
	
  SECTION 12.01.

  	
  Satisfaction, Discharge and Defeasance of Debt
  Securities of any Series

  	
  52

  
	
  SECTION 12.02.

  	
  Defeasance of Debt Securities of any Series

  	
  53

  
	
  SECTION 12.03.

  	
  Application of Trust Funds; Indemnification

  	
  54

  
	
  SECTION 12.04.

  	
  Return of Unclaimed Moneys

  	
  55

  
	
  SECTION 12.05.

  	
  Reinstatement

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
  OFFICERS AND DIRECTORS

  	
   

  
	
  SECTION 13.01.

  	
  Indenture and Debt Securities Solely Obligations of
  the Company

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14. MISCELLANEOUS PROVISIONS

  	
   

  
	
  SECTION 14.01.

  	
  Provisions Binding on Successors of the Company

  	
  56

  
	
  SECTION 14.02.

  	
  Indenture for Sole Benefit of Parties and Holders of
  Debt Securities

  	
  56

  
	
  SECTION 14.03.

  	
  Addresses for Notices, etc.

  	
  56

  
	
  SECTION 14.04.

  	
  New York Contract; Waiver of Jury Trial

  	
  57

  
	
  SECTION 14.05.

  	
  Evidence of Compliance with Conditions Precedent

  	
  57

  
	
  SECTION 14.06.

  	
  Legal Holidays

  	
  57

  
	
  SECTION 14.07.

  	
  Trust Indenture Act of 1939 to Control

  	
  58

  
	
  SECTION 14.08.

  	
  Table of Contents, Headings, etc.

  	
  58

  
	
  SECTION 14.09.

  	
  Determination of Principal Amount

  	
  58

  
	
  SECTION 14.10.

  	
  Execution in Counterparts

  	
  58

  
	
  SECTION 14.11.

  	
  Force Majeure

  	
  58

  
	
  SECTION 14.12.

  	
  U.S.A. Patriot Act

  	
  59

  



 


iii

















 


	
  Signatures

  	
  60

  
	
  Acknowledgments

  	
  60

  



 


iv

















 


CROSS
REFERENCE SHEET


 


Between


 


Provisions of Sections 310 through
318(a) inclusive of Trust Indenture Act of 1939 and the Indenture dated as
of February 8, 2010, between The Manitowoc Company, Inc. and Wells
Fargo Bank, National Association, a national banking association, as trustee.


 


	
  Section of Act

  	
   

  	
  Section of
  Indenture

  
	
  310(a)(1) and (2)

  	
   

  	
  8.09

  
	
  310(a)(3) and (4)

  	
   

  	
  *

  
	
  310(b)

  	
   

  	
  8.08 and 8.10

  
	
  310(c)

  	
   

  	
  *

  
	
  311(a)

  	
   

  	
  8.13

  
	
  311(b)

  	
   

  	
  8.13

  
	
  311(c)

  	
   

  	
  *

  
	
  312(a)

  	
   

  	
  6.01 and 6.02(a)

  
	
  312(b)

  	
   

  	
  6.02(b)

  
	
  312(c)

  	
   

  	
  6.02(c)

  
	
  313(a)(1), (2), (3), (4), (6) and (7)

  	
   

  	
  6.04(a)

  
	
  313(a)(5)

  	
   

  	
  *

  
	
  313(b)(1)

  	
   

  	
  *

  
	
  313(b)(2)

  	
   

  	
  6.04

  
	
  313(c)

  	
   

  	
  6.04

  
	
  313(d)

  	
   

  	
  6.04

  
	
  314(a)(1)

  	
   

  	
  6.03

  
	
  314(a)(2)

  	
   

  	
  6.03

  
	
  314(a)(3)

  	
   

  	
  6.03

  
	
  314(b)

  	
   

  	
  *

  
	
  314(c)(1)

  	
   

  	
  5.05

  
	
  314(c)(2)

  	
   

  	
  14.05

  
	
  314(c)(3)

  	
   

  	
  *

  
	
  314(d)

  	
   

  	
  *

  
	
  314(e)

  	
   

  	
  14.05

  
	
  314(f)

  	
   

  	
  *

  
	
  315(a), (c) and (d)

  	
   

  	
  8.01

  
	
  315(b)

  	
   

  	
  7.08

  
	
  315(e)

  	
   

  	
  7.09

  
	
  316(a)(1)

  	
   

  	
  7.07

  
	
  316(a)(2)

  	
   

  	
  *

  
	
  316(a) last para.

  	
   

  	
  9.04

  
	
  316(b)

  	
   

  	
  7.10

  
	
  317(a)

  	
   

  	
  7.02

  
	
  317(b)

  	
   

  	
  5.04

  
	
  318(a)

  	
   

  	
  14.07

  



 






* Not Applicable.


 


This cross reference sheet shall not, for any purpose,
be considered part of the Indenture.


 


v






 


 












 


THIS INDENTURE, dated as of February 8, 2010, between The
Manitowoc Company, Inc., a Wisconsin corporation (the “Company”), and
Wells Fargo Bank, National Association, a national banking association, as
trustee (the “Trustee”).


 


RECITALS OF THE
COMPANY


 


The Company has duly authorized the execution and
delivery of this Indenture to provide for the issue from time to time of its
unsecured debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series as in this Indenture provided, up to such
principal amount or amounts as may from time to time be authorized in or
pursuant to one or more resolutions of the Board of Directors.


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration of the premises and the
purchase or acceptance of the Debt Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of the
respective Holders from time to time of the Debt Securities or of any series
thereof as follows:


 


ARTICLE
1.


DEFINITIONS


 


SECTION 1.01.    Definitions.  The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01.
All other terms used in this Indenture which are defined in the Trust Indenture
Act of 1939 or which are by reference therein defined in the Securities Act of
1933, as amended, shall have (except as herein otherwise expressly provided or
unless the context otherwise requires) the meanings assigned to such terms in
said Trust Indenture Act of 1939 and in said Securities Act as in force at the
date of the execution of this Indenture. All accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein expressly
provided, the term “generally accepted accounting principles” with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States for domestic
companies at the date of such computation. All references to such terms herein
shall be both to the singular or the plural, as the context so requires. Unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or Section, as the case may be, of this Indenture.
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. The words “including,” “includes” and “include” shall be
deemed to be followed by the words “without limitation.”


 

















 


Affiliate:


 


“Affiliate” means, with respect to any specified
Person, any other Person who directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
such specified Person.  The term “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative of the foregoing.


 


Authenticating Agent:


 


The term “Authenticating Agent” means the agent of the
Trustee, if any, which at the time shall be appointed and acting pursuant to Section 8.14.


 


Board of Directors:


 


“Board of Directors” means, as to any Person, the
board of directors of such Person or any duly authorized committee thereof or,
with respect to any Person that is not a corporation, the Person or Persons
performing corresponding functions.


 


Board Resolution:


 


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


 


Business Day:


 


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


 


Capital Stock:


 


“Capital Stock” means:


 


(i)            with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person; and


 


(ii)           with respect to any Person that is
not a corporation, any and all partnership, membership or other equity
interests of such Person.


 


Commission:


 


The term “Commission” means the U.S. Securities and
Exchange Commission.


 


2

















 


Common Stock:


 


“Common Stock” of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person’s common stock, and includes,
without limitation, all series and classes of such common stock.


 


Company:


 


“Company” means the party named as the “Company” in
the first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall mean such
successor. The forgoing sentence shall likewise apply to any subsequent such
successor or successors.


 


Company Request and Company Order:


 


The terms “Company Request” and “Company Order” mean,
respectively, a written request or order signed in the name of the Company by
its Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer or a Vice
President, and by its Treasurer, Secretary, Assistant Secretary or Assistant
Treasurer, and delivered to the Trustee.


 


Conversion Date:


 


The term “Conversion Date” has the meaning set forth
in Section 3.11:


 


Corporate Trust Office:


 


The term “Corporate Trust Office” means the office of
the Trustee at which, at any particular time, its corporate trust business
shall principally be administered, which office at the date hereof is located
at Wells Fargo Bank, National Association, Corporate Trust Services, MAC
N9311-10, 625 Marquette Avenue, Minneapolis, MN 55479, Attention:  Manitowoc Account Manager, or such other
address as the Trustee may designate from time to time by notice to the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Company).


 


Currency Determination Agent:


 


The term “Currency Determination Agent” means the
financial institution, if any, from time to time selected by the Company for
purposes of Section 3.11.


 


Debt Security or Debt Securities:


 


The terms “Debt Security” or “Debt Securities” means
any unsecured notes, debentures or other indebtedness of any series, as the
case may be, issued by the Company from time to time, and authenticated and
delivered under this Indenture.


 


3

















 


Debt Security Register:


 


The term “Debt Security Register” has the meaning set
forth in Section 3.06.


 


Debt Security Registrar:


 


The term “Debt Security Registrar” has the meaning set
forth in Section 3.06.


 


Depository:


 


The term “Depository” means, unless otherwise
specified by the Company pursuant to Section 3.01, with respect to Debt
Securities of any series issuable or issued as a Global Debt Security, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934, as amended, or other applicable statute
or regulation.


 


Dollar:


 


The term “Dollar” means the coin or currency of the
United States of America which as of the time of payment is legal tender for
the payment of public and private debts.


 


Dollar Equivalent of the Foreign Currency:


 


The term “Dollar Equivalent of the Foreign Currency”
shall have the meaning set forth in Section 3.11.


 


Event of Default:


 


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


 


Foreign Currency:


 


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


 


Global Debt Security:


 


The term “Global Debt Security” means a Debt Security
issued in global form pursuant to Section 2.04 hereof to evidence all or
part of a series of Debt Securities.


 


Government Obligations:


 


The term “Government Obligations” means securities
which are (i) direct obligations of the government which issued the
currency in which the Debt Securities of a series are denominated or (ii) obligations
of a person controlled or supervised by and acting as an agency or instrumentality
of the government which issued the currency in which the Debt Securities of
such series are denominated, the payment of which obligations is
unconditionally guaranteed by such government, and which, in either case, are
full faith and credit obligations of such 


 


4

















 


government, are denominated in the currency in which
the Debt Securities of such series are denominated and which are not callable
or redeemable at the option of the issuer thereof.


 


Holder:


 


The term “Holder” means any Person in whose name a
Debt Security of any series is registered in the Debt Security Register
applicable to Debt Securities of such series.


 


Indenture:


 


The term “Indenture” means this instrument as
originally executed and delivered or, if amended or supplemented as herein
provided pursuant to the applicable provisions hereof, as so amended or
supplemented.


 


Indexed Debt Security:


 


The term “Indexed Debt Security” means a Debt Security
the terms of which provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount thereof at original
issuance.


 


Interest:


 


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


 


Interest Payment Date:


 


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


 


Market Exchange Rate:


 


The term “Market Exchange Rate” shall have the meaning
set forth in Section 3.11.


 


Officers’ Certificate:


 


The term “Officers’ Certificate”, when used with
respect to the Company, means a certificate signed by its Chairman of the
Board, Vice Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or a Vice President and by its
Treasurer, Secretary, Assistant Secretary or Assistant Treasurer and delivered
to the Trustee. Each such certificate shall include the statements provided for
in Section 14.05 to the extent required by the provisions of such Section.


 


Opinion of Counsel:


 


The term “Opinion of Counsel” means an opinion in
writing signed by legal counsel who may be an employee of or counsel to the
Company and who shall be reasonably acceptable to the Trustee. Each such
opinion shall include the statements provided for in Sections 2.02, 3.04 and
14.05 to the extent required by the provisions of such Sections.


 


5

















 


Original Issue Discount Debt Security:


 


The term “Original Issue Discount Debt Security” means
any Debt 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 7.01.


 


Outstanding:


 


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


 


(i)            such Debt Securities theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation;


 


(ii)           such Debt Securities for whose
payment or redemption money in the necessary amount and in the specified
currency 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 Debt Securities, provided, however, that if such Debt 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)          such Debt Securities in exchange for
or in lieu of which other such Debt Securities have been authenticated and
delivered pursuant to this Indenture, or such Debt Securities which have been
paid, pursuant to this Indenture, unless proof satisfactory to the Trustee is presented
that any such Debt Securities are held by Persons in whose hands any of such
Debt Securities are a legal, valid and binding obligation of the Company, and


 


(iv)          such Debt Securities the indebtedness
in respect to which has been discharged in accordance with Section 12.02.


 


provided, however, that in determining whether the Holders of the
requisite principal amount of such Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
such Debt Securities owned by the Company or any other obligor upon such Debt
Securities or any Affiliate of the Company or such other obligor (except in the
case in which the Company or such other obligor or Affiliate owns all Debt
Securities Outstanding under the Indenture, or all Outstanding Debt Securities
of each such series, as the case may be, without regard to this proviso) shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only such Debt
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Such Debt 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
Debt Securities and that the pledgee is not the Company or any other such
obligor upon such Debt Securities or any Affiliate of the Company or such other
obligor. In case of a dispute as to such right, the decision of the Trustee
upon the advice of counsel shall be full protection to the Trustee. The Company
shall furnish to the Trustee 


 


6

















 


promptly an Officers’ Certificate listing and
identifying all such Debt Securities, if any, known by the Company to be owned
or held by or for the account of any of the above described Persons; and,
subject to the provisions of Section 8.01, the Trustee shall be entitled
to accept such Officers’ Certificate as conclusive evidence of the facts
therein set forth and of the fact that all such Debt Securities not listed
therein are Outstanding for the purpose of any such determination.


 


Person:


 


The term “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.


 


Place of Payment:


 


The term “Place of Payment”, when used with respect to
the Debt Securities of any series, means the place or places where the
principal of (premium, if any) and interest on the Debt Securities of that
series are payable as specified in accordance with Section 3.01.


 


Predecessor Debt Security:


 


The term “Predecessor Debt Security” of any particular
Debt Security means every previous Debt Security evidencing all or a portion of
the same debt as that evidenced by such particular Debt Security, and for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 3.07 in lieu of a mutilated, lost, destroyed or stolen Debt
Security shall be deemed to evidence the same debt as the mutilated, lost, destroyed
or stolen Debt Security.


 


Preferred Stock:


 


“Preferred Stock” of any Person means any Capital
Stock of such Person that has preferential rights to any other Capital Stock of
such Person with respect to dividends or redemptions or upon liquidation.


 


Redemption Date:


 


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


 


Redemption Price:


 


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


 


7

















 


Regular Record Date:


 


The term “Regular Record Date” for the interest
payable on any Debt Security on any Interest Payment Date means the date
specified in such Debt Security as the “Regular Record Date” as contemplated by
Section 3.01.


 


Responsible Officer:


 


The term “Responsible Officer”, when used with respect
to the Trustee, means any officer of the Trustee located at the Corporate Trust
Office of the Trustee, who shall have direct responsibility for the
administration of this Indenture and, for the purposes of Section 7.07, Section 7.08
and Section 8.01(c)(2), shall also include any other officer of the
Trustee to whom any corporate trust matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.


 


The term “Responsible Officer”, when used with respect
to the Company, means the Chairman of the Board, Vice Chairman of the Board,
Chief Executive Officer, President, Chief Operating Officer, Chief Financial
Officer, Treasurer or Secretary, or any Vice President, Assistant Secretary or
Assistant Treasurer, in each case, of the Company.


 


Special Record Date:


 


The term “Special Record Date” for the payment of any
Defaulted Interest (as defined in Section 3.08) means a date fixed by the
Trustee pursuant to Section 3.08.


 


Stated Maturity:


 


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


 


Subsidiary:


 


“Subsidiary” with respect to any Person, means:


 


(i)            any corporation of which the
outstanding Capital Stock having at least a majority of the votes entitled to
be cast in the election of directors under ordinary circumstances shall at the
time be owned, directly or through another subsidiary, by such Person; or


 


(ii)           any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the time,
directly or through another subsidiary, owned by such Person.


 


Trustee:


 


“Trustee” means the party named as the “Trustee” in
the first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, 


 


8

















 


thereafter, shall mean such successor. The foregoing
sentence shall likewise apply to any subsequent such successor or successors.


 


Trust Indenture Act of 1939:


 


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


 


Valuation Date:


 


The term “Valuation Date” shall have the meaning set
forth in Section 3.11.


 


Voting Stock:


 


The term “Voting Stock” means outstanding shares of
capital stock or similar equity interests having under ordinary circumstances voting
power for the election of directors, managers or the substantial equivalent
thereof whether at all times or only so long as no senior class of stock or
similar equity interest has such voting power by reason of the happening of any
contingency.


 


ARTICLE
2.


DEBT
SECURITY FORMS.


 


SECTION 2.01.    Forms Generally.  The Debt Securities of each series and the
certificates of authentication thereon shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture (the provisions of which shall be appropriate to reflect the
terms of each series of Debt Securities, including the currency or
denomination, which may be Dollars or Foreign Currency), and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of
any securities exchange, or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their signing of such
Debt Securities. Any portion of the text of any Debt Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of
the Debt Security.


 


The definitive Debt Securities shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the officers executing
such Debt Securities, as evidenced by their signing of such Debt Securities.


 


SECTION 2.02.    Forms of Debt Securities.  The Debt Securities of each series shall be
in such form or forms (including global form) as shall be established by or
pursuant to a Board Resolution.


 


9

















 


Prior to the delivery of a Debt Security of any series
in any such form to the Trustee for the Debt Securities of such series for
authentication, the Company shall deliver to the Trustee the following:


 


(a)           The Board Resolution
by or pursuant to which such form of Debt Security has been approved;


 


(b)           An Officers’
Certificate dated the date such Officers’ Certificate is delivered to the
Trustee stating that all conditions precedent provided for in this Indenture
relating to the authentication and delivery of Debt Securities in such form
have been complied with; and


 


(c)           An Opinion of
Counsel stating that Debt Securities in such form, together with any coupons
appertaining thereto, when (i) completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in accordance
with this Indenture, (ii) authenticated and delivered by such Trustee in
accordance with this Indenture within the authorization as to aggregate
principal amount established from time to time by the Board of Directors, and (iii) sold
in the manner specified in such Opinion of Counsel, will be the legal, valid
and binding obligations of the Company, subject to applicable bankruptcy,
reorganization, insolvency and other similar laws generally affecting 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 Debt Securities.


 


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


 


SECTION 2.03.    Form of Trustee’s
Certificate of Authentication. 
The following is the form of the Certificate of Authentication of the
Trustee to be endorsed on the face of all Debt Securities substantially as
follows:


 


This is one of the Debt Securities of the series
designated herein issued under the within-mentioned Indenture.


 


	
   

  	
  WELLS FARGO BANK,
  NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 


SECTION 2.04.    Debt Securities in Global
Form.  (a) If the Company
shall establish pursuant to Section 3.01 that the Debt Securities of a
particular series are to be issued in whole or in part in the form of one or
more Global Debt Securities, then the Company shall execute and the Trustee or
its agent shall, in accordance with Section 3.04 and the Company Order
delivered to the Trustee or its agent thereunder, authenticate and deliver such
Global Debt Security or


 


10






 












 


Global Debt Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Debt Security or Global Debt Securities, or such
portion thereof as the Company shall specify in a Company Order, (ii) shall
be registered in the name of the Depository for such Global Debt Security or
Global Debt Securities or its nominee, (iii) shall be delivered by the
Trustee or its agent to the Depository or pursuant to the Depository’s
instruction and (iv) shall bear a legend substantially to the following
effect: “Unless this certificate is presented by an authorized representative
of the Depository to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
the nominee of the Depository or in such other name as is requested by an
authorized representative of the Depository (and any payment is made to the
nominee of the Depository or to such other entity as is requested by an
authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, the nominee of the Depository, has an interest
herein.”


 


(b)           Notwithstanding any
other provision of this Section 2.04 or of Section 3.06, and subject
to the provisions of paragraph (c) below, unless the terms of a Global
Debt Security expressly permit such Global Debt Security to be exchanged in
whole or in part for individual certificates representing Debt Securities, a
Global Debt Security may be transferred, in whole but not in part and in the
manner provided in Section 3.06, only to a nominee of the Depository for such
Global Debt Security, or to the Depository, or a successor Depository for such
Global Debt Security selected or approved by the Company, or to a nominee of
such successor Depository.


 


(c)           (1) If at any
time the Depository for a Global Debt Security notifies the Company that it is
unwilling or unable to continue as Depository for such Global Debt Security or
if at any time the Depository for the Global Debt Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depository with respect to such Global Debt Security.
If a successor Depository for such Global Debt Security is not appointed by the
Company within 90 days after the Company receives notice or becomes aware of
such ineligibility, the Company will execute, and the Trustee or its agent,
upon receipt of a Company Request for the authentication and delivery of
certificates representing Debt Securities of such series in exchange for such
Global Debt Security, will authenticate and deliver, certificates representing
Debt Securities of such series of like tenor and terms in an aggregate
principal amount equal to the principal amount of the Global Debt Security in
exchange for such Global Debt Security.


 


(2)           If specified by the
Company pursuant to Section 3.01 with respect to Debt Securities issued or
issuable in the form of a Global Debt Security, the Depository for such Global
Debt Security may surrender such Global Debt Security in exchange in whole or
in part for certificates representing Debt Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without a service charge, (A) to
each Holder specified by the Debt Security Registrar or the Depository a
certificate or certificates representing Debt Securities of the same series of
like tenor and terms and of any authorized denomination as requested by such
person in an aggregate principal 


 


11

















 


amount
equal to and in exchange for such Holder’s beneficial interest as specified by
the Debt Security Registrar or the Depository in the Global Debt Security; and (B) to
such Depository a new Global Debt Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Debt Security and the aggregate principal
amount of certificates representing Debt Securities delivered to Holders
thereof.


 


(3)           In any exchange
provided for in any of the preceding three paragraphs, the Company will execute
and the Trustee or its agent will authenticate and deliver certificates
representing Debt Securities in definitive registered form in authorized
denominations for Debt Securities of the same series or any integral multiple
thereof. Upon the exchange of the entire principal amount of a Global Debt
Security for certificates representing Debt Securities, such Global Debt
Security shall be cancelled by the Trustee or its agent. Except as provided in
the preceding paragraph, certificates representing Debt Securities issued in
exchange for a Global Debt Security pursuant to this Section shall be
registered in such names and in such authorized denominations for Debt
Securities of that series or any integral multiple thereof, as the Debt
Security Registrar or Depository shall instruct the Trustee or its agent. The
Trustee or the Debt Security Registrar shall deliver at its Corporate Trust
Office such certificates representing Debt Securities to the Holders in whose
names such Debt Securities are so registered.


 


ARTICLE
3.


THE DEBT
SECURITIES.


 


SECTION 3.01.      Title and Terms.  The aggregate principal amount of Debt
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Debt Securities may be issued up to the aggregate principal
amount of Debt Securities from time to time authorized by or pursuant to a
Board Resolution.


 


The Debt Securities may be issued in one or more series. All Debt
Securities of each series issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time or
times of the authentication and delivery or maturity of the Debt Securities of
such series. There shall be established in or pursuant to a Board Resolution,
and set forth in an Officers’ Certificate to the extent not established in a
Board Resolution, or established in one or more indentures supplemental hereto,
prior to the issuance of Debt Securities of any series:


 


(a)           the title of the
Debt Securities of the series (which shall distinguish the Debt Securities of
the series from all other series of Debt Securities);


 


(b)           any limit upon the
aggregate principal amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Debt Securities of that series pursuant to this Article Three,
the second paragraph of Section 4.03, or Section 10.04);


 


(c)           the date or dates
(or the manner of calculation thereof) on which the principal of the Debt
Securities of the series is payable;


 


12

















 


(d)           the rate or rates
(or the manner of calculation thereof) at which the Debt Securities of the
series shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any Interest
Payment Date;


 


(e)           the Place of
Payment;


 


(f)            the period or
periods within which, the price or prices at which, the currency or currency
units in which, and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the Company;


 


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


 


(h)           the denominations in
which the Debt Securities of such series shall be issuable if other than
denominations of $2,000 and integral multiples of $1,000 in excess thereof;


 


(i)            if other than
Dollars, the currencies in which payments of interest or principal of (and
premium, if any, with respect to) the Debt Securities of the series are to be
made;


 


(j)            if the interest on
or principal of (or premium, if any, with respect to) the Debt Securities of
the series are to be payable, at the election of the Company or a Holder
thereof or otherwise, in a currency other than that in which such Debt
Securities are payable, the period or periods within which, and the other terms
and conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the currency in such Debt Securities
are denominated or stated to be payable and the currency in which such Debt
Securities or any of them are to be so payable;


 


(k)           whether the amount
of payments of interest on or principal of (or premium, if any, with respect
to) the Debt Securities of such series may be determined with reference to an
index, formula or other method (which index, formula or method or method may be
based, without limitation, on one or more currencies, commodities, equity
indices or other indices), and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined and paid or payable;


 


(l)            the extent to which
any Debt Securities will be issuable in permanent global form, the manner in
which any payments on a permanent global Debt Security will be made, and the
appointment of any Depository relating thereto;


 


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


 


13

















 


(n)           if any of the Debt
Securities of such series are to be issuable upon the exercise of warrants,
this shall be so established as well as the time, manner and place for such
Debt Securities to be authenticated and delivered;


 


(o)           any applicable CUSIP
numbers;


 


(p)           whether the Debt
Securities will be guaranteed by any of the Company’s Subsidiaries and the
terms of any guarantees;


 


(q)           whether and upon
what terms the Debt Securities will be convertible into or exchangeable for
other securities or other properties; and


 


(r)            any other terms of
the series (which terms shall not be inconsistent with the provisions of this
Indenture).


 


All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officers’ Certificate
or in any such indenture supplemental hereto.


 


SECTION 3.02.      Denominations.  The Debt Securities of each series shall be
issuable in registered form without coupons in such denominations as shall be
specified as contemplated in Section 3.01. In the absence of any
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $2,000 and
integral multiples of $1,000 in excess thereof, which may be in Dollars or any
Foreign Currency.


 


SECTION 3.03.      Payment of Principal and
Interest.  The principal of,
premium, if any, and interest on the Debt Securities shall be payable at the
office or agency of the Company designated for that purpose in the Place of
Payment, as provided in Section 5.02; provided, however, that interest may
be payable at the option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear on the Debt Security
Register on the Regular Record Date for such interest payment.


 


SECTION 3.04.      Execution of Debt
Securities.  The Debt
Securities shall be executed manually or by facsimile in the name and on behalf
of the Company by its Chairman of the Board of Directors, its President, one of
its Vice Presidents or its Treasurer and by its Secretary or one of its
Assistant Secretaries. Only such Debt Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
manually executed by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or become obligatory for any purpose. Such certificate by
the Trustee upon any Debt Security executed by the Company shall be conclusive
evidence that the Debt Security so authenticated has been duly authenticated
and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.


 


In case any officer of the Company who shall have executed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
executed shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Debt Securities nevertheless shall be valid
and binding and may be authenticated and delivered or disposed of as though the
Person who executed such Debt Securities had not ceased to be such officer of
the 


 


14

















 


Company; and any Debt Securities may be executed on
behalf of the Company by such Persons as, at the actual date of the execution
of such Debt Security, shall be the proper officers of the Company, although at
the date of such Debt Security or of the execution of this Indenture any such
Person was not such an officer.


 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series, properly
created in accordance with Section 3.01 and executed by the Company, to
the Trustee for authentication; and the Trustee shall authenticate and deliver
such Debt Securities upon receipt of a Company Order. In the event that any
other Person performs the Trustee’s duties as Authenticating Agent pursuant to
a duly executed agreement, the Company shall notify the Trustee in writing of
the issuance of any Debt Securities hereunder, such notice to be delivered in
accordance with the provisions of Section 14.03 on the date such Debt
Securities are delivered by the Company for authentication to such other
Person.


 


Prior to any such authentication and delivery, the Trustee shall
receive, and shall be fully protected in conclusively relying upon, in addition
to the Opinion of Counsel to be furnished to the Trustee pursuant to Sections
2.02 and 14.05 and the Officers’ Certificate relating to the issuance of any
series of Debt Securities pursuant to Sections 14.05 and 3.01, Opinions of
Counsel stating that:


 


(a)           all instruments
furnished to the Trustee conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to authenticate and
deliver such Debt Securities;


 


(b)           all laws and
requirements with respect to the form and execution by the Company of the
supplemental indenture, if any, have been complied with, the execution and
delivery of the supplemental indenture, if any, will not violate the terms of
this Indenture, the supplemental indenture has been duly qualified under the
Trust Indenture Act of 1939, the Company has corporate or company power to
execute and deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental indenture has
been executed and delivered and constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’ rights generally and
general equitable principles from time to time in effect and to such other
qualifications as such counsel shall conclude do not materially affect the rights
of Holders of such Debt Securities);


 


(c)           the form and terms
of such Debt Securities have been established in conformity with the provisions
of this Indenture; and


 


(d)           all laws and
requirements with respect to the execution and delivery by the Company of such
Debt Securities have been complied with, the authentication and delivery of the
Debt Securities by the Trustee will not violate the terms of this Indenture,
the Company has the corporate or company power to issue such Debt Securities
and such Debt Securities, assuming due authentication and delivery by the
Trustee, constitute legal, valid and binding obligations of the Company in
accordance with their terms (subject, as to enforcement of 


 


15

















 


remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally and general equitable principles from
time to time in effect and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such Debt
Securities) and are entitled to the benefits of this Indenture, equally and
ratably with all other Outstanding Debt Securities, if any, of such series.


 


The Trustee shall not be required to authenticate such Debt Securities
if the issue thereof will adversely affect the Trustee’s own rights, duties or
immunities under the Debt Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or such action would
expose the Trustee to personal liability to existing Holders.


 


Unless otherwise provided in the form of Debt Security for any series,
all Debt Securities shall be dated the date of their authentication.


 


No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Debt Security shall be conclusive evidence, and the only evidence, that
such Debt Security has been duly authenticated and delivered hereunder.


 


SECTION 3.05.      Temporary Debt Securities.  Pending the preparation of definitive Debt
Securities of any series, the Company may execute, and upon receipt of the
documents required by Sections 2.02, 3.01 and 3.04, together with a Company
Order, the Trustee shall authenticate and deliver, such temporary Debt
Securities which may be printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denominations, substantially of the tenor
of such definitive Debt Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such temporary Debt Securities may determine, as
evidenced by their execution of such temporary Debt Securities.


 


If temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of any
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, upon surrender of the temporary Debt
Securities of such series at any office or agency maintained by the Company for
such purposes as provided in Section 5.02, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Debt Securities of
any series, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefore a like principal amount of definitive Debt
Securities of such series having the same interest rate and Stated Maturity and
bearing interest from the same date of any authorized denominations. Until so
exchanged the temporary Debt Securities of such series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt
Securities of such series.


 


SECTION 3.06.      Exchange and Registration
of Transfer of Debt Securities. 
Debt Securities may be exchanged for a like aggregate principal amount
of Debt Securities of such series that are of other authorized denominations.
Debt Securities to be exchanged shall be surrendered at any office or agency to
be maintained for such purpose by the Company, as 


 


16

















 


provided in Section 5.02, and the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefore
the Debt Security or Debt Securities of authorized denominations which the Debt
Security Holder making the exchange shall be entitled to receive. Each agent of
the Company appointed pursuant to Section 5.02 as a person authorized to
register and register transfer of Debt Securities is sometimes herein referred
to as a “Debt Security Registrar.”


 


The Company shall keep, at each such office or agency of the Company
maintained for such purpose, as provided in Section 5.02, a register for
each series of Debt Securities hereunder (the registers of all Debt Security
Registrars being herein sometimes collectively referred to as the “Debt
Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Debt Securities
and shall register the transfer of Debt Securities as provided in this Article Three.
At all reasonable times, such Debt Security Register shall be open for
inspection by the Trustee and any Debt Security Registrar other than the
Trustee. Upon due presentment for registration of transfer of any Debt Security
at any such office or agency, the Company shall execute and register and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Debt Security or Debt Securities of authorized denominations
for an equal aggregate principal amount. Registration or registration of
transfer of any Debt Security by any Debt Security Registrar in the registry
books maintained by such Debt Security Registrar, and delivery of such Debt
Security, duly authenticated, shall be deemed to complete the registration or
registration of transfer of such Debt Security.


 


The Company will at all times designate one Person (who may be the
Company and who need not be a Debt Security Registrar) to act as repository of
a master list of names and addresses of Holders of the Debt Securities. The
Trustee shall act as such repository unless and until some other Person is, by
written notice from the Company to the Trustee and each Debt Security
Registrar, designated by the Company to act as such. The Company shall cause
each Debt Security Registrar to furnish to such repository, on a current basis,
such information as such repository may reasonably request as to registrations,
transfers, exchanges and other transactions effected by such registrar, as may
be necessary or advisable to enable such repository to maintain such master
list on as current a basis as is reasonably practicable.


 


No Person shall at any time be appointed as or act as a Debt Security
Registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.


 


All Debt Securities presented to a Debt Security Registrar for
registration of transfer shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and such Debt Security Registrar duly executed by the registered Holder
or such Holder’s attorney duly authorized in writing.


 


No service charge shall be made for any exchange or registration of
transfer of Debt 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 therewith.


 


The Company shall not be required to issue, exchange or register a
transfer of (a) any Debt Securities of any series for a period of 15 days
next preceding the mailing of a notice of 


 


17

















 


redemption of Debt Securities of such series and
ending at the close of business on the day of the mailing of a notice of
redemption of Debt Securities of such series so selected for redemption, or (b) any
Debt Securities selected, called or being called for redemption except, in the
case of any Debt Security to be redeemed in part, the portion thereof not so to
be redeemed.


 


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


 


None of the Trustee, any agent of the Trustee, any paying agent or the
Company 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
Global Debt Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.


 


SECTION 3.07.      Mutilated, Destroyed, Lost
or Stolen Debt Securities.  In
case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
a Company Request the Trustee shall authenticate and deliver, a new Debt
Security, bearing a number, letter or other distinguishing mark not
contemporaneously Outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and to the Trustee such security or
indemnity that is sufficient in the judgment of (i) the Trustee to protect
the Trustee; and (ii) the Company to protect the Company, the Trustee, any
Agent and any authenticating agent, from any destruction, loss or theft that
any of them may suffer if a Note is replaced. The applicant shall also furnish
to the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft, of such Debt Security and of the ownership thereof.


 


In the absence of notice to the Trustee or the Company that such Debt
Security has been acquired by a bona fide purchaser, the Trustee shall
authenticate any such substituted Debt Security and deliver the same upon any
Company Request. Upon the issuance of any substituted Debt Security, 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 connected therewith. In case any Debt Security which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Debt Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debt Security) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as may be required by
them to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction,
loss or theft of such Debt Security and of the ownership thereof.


 


Every substituted Debt Security issued pursuant to the provisions of
this Section 3.07 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debt Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities
duly issued hereunder. All Debt Securities 


 


18

















 


shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities and shall
preclude (to the extent permitted by law) any and all other rights or remedies
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.


 


SECTION 3.08.      Payment of Interest;
Interest Rights Preserved. 
Interest which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date, on any Debt Security, shall unless otherwise
provided in such Debt Security be paid to the Person in whose name the Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest.


 


Unless otherwise stated in the form of Debt Security of a series,
interest on the Debt Securities of any series shall be computed on the basis of
a 360 day year comprised of twelve 30 day months.


 


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


 


(a)           The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
any such Debt Securities (or their respective Predecessor Debt 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 Debt Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 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 therefore to be mailed, first-class postage prepaid, to
each Holder of such Debt Securities, at such Holder’s address as it appears in
the Debt 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 therefore having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt Securities) are registered on such Special Record
Date and shall no longer be payable pursuant to the following Clause (b).


 


(b)           The Company may make
payment of any Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt 


 


19

















 


Securities
of that series 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 payment shall be deemed practicable by
the Trustee.


 


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


 


SECTION 3.09.      Persons Deemed Owners.  The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name any Debt Security is
registered as the owner of such Debt Security for the purpose of receiving
payment of principal of, premium, if any, and (subject to Section 3.08)
interest on, such Debt Security and for all other purposes whatsoever whether
or not such Debt Security be overdue, and neither the Company, the Trustee, nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


SECTION 3.10.      Cancellation of Debt Securities
Paid, etc.  All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer or delivered in satisfaction in whole or in part of
any sinking fund obligation shall, if surrendered to the Company or any agent
of the Trustee or the Company under this Indenture, be delivered to the Trustee
and promptly cancelled by it, or, if surrendered to the Trustee, shall be
promptly cancelled by it, and no Debt Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Debt Securities in accordance
with its customary procedures.


 


SECTION 3.11.      Currency and Manner of
Payments.  (a)  With
respect to Debt Securities denominated in Dollars or a Foreign Currency, the
following payment provisions shall apply:


 


(1)           Except as provided
in subparagraph (a)(2) or in paragraph (c) of this Section 3.11,
payment of principal of and premium, if any, on any Debt Securities will be
made at the offices established pursuant to Section 5.02 by delivery of a
check in the currency in which the Debt Security is denominated on the payment
date against surrender of such Debt Security, and any interest on any Debt
Security will be paid at such office by mailing a check in the currency in
which the Debt Securities were issued to the Person entitled thereto at the
address of such Person appearing on the Debt Security Register.


 


(2)           Payment of the
principal of and premium, if any, and interest on such Debt Security may also,
subject to applicable laws and regulations, be made at such other place or
places as may be designated by the Company by any appropriate method.


 


(b)           Not later than the
fourth Business Day after the Regular Record Date for such Interest Payment
Date, the paying agent will deliver to the Company a written notice specifying,
in the currency in which each series of the Debt Securities are denominated,
the respective aggregate amounts of principal of and premium, if any, and
interest on the Debt Securities to be made on such payment date, specifying the
amounts so payable in respect of the Debt Securities.


 


20






 












 


The
failure of the paying agent to deliver such notice shall not relieve the
Company from its obligation to make all payments with respect to any Debt
Security when due.


 


(c)           If the Foreign
Currency in which any of the Debt Securities are denominated ceases to be used
both by the government of the country which issued such currency and for the
settlement of transactions by public institutions of or within the
international banking community, then with respect to each date for the payment
of Foreign Currency occurring after the last date on which the Foreign Currency
was so used (the “Conversion Date”), the Dollar shall be the currency of
payment for use on each such Interest Payment Date. The Dollar amount to be
paid by the Company to the Trustee and by the Trustee or any paying agent to
the Holder of such Debt Securities with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency as determined by the Currency
Determination Agent as of the second Business Day preceding the applicable
payment date (the “Valuation Date”) in the manner provided in paragraph (d).


 


(d)           The “Dollar
Equivalent of the Foreign Currency” shall be determined by the Currency
Determination Agent as of each Valuation Date and shall be obtained by
converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Valuation Date.


 


(e)           The “Market Exchange
Rate” shall mean, for any currency, the highest firm bid quotation for U.S.
dollars received by the Currency Determination Agent at approximately 11:00 a.m.,
New York City time, on the second Business Day preceding the applicable payment
date (or, if no such rate is quoted on such date, the last date on which such
rate was quoted), from three recognized foreign exchange dealers in the City of
New York selected by the Currency Determination Agent and approved by the
Company (one of which may be the Currency Determination Agent) for the purchase
by the quoting dealer, for settlement on such payment date, of the aggregate
amount of such currency payable on such payment in respect of all Notes
denominated in such currency.


 


(f)            All decisions and
determinations of the Currency Determination Agent regarding the Dollar
Equivalent of the Foreign Currency and the Market Exchange Rate 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 and all Holders of the
Debt Securities. In the event that the Foreign Currency ceases to be used both
by the government of the country which issued such currency and for the
settlement of transactions by public institutions of or within the
international banking community, the Company, after learning thereof, will
promptly give written notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 14.03 to
the Holders) specifying the Conversion Date.


 


(g)           The Trustee shall be
fully justified and protected in conclusively relying on and acting upon the
information so received by it from the Company or the Currency Determination
Agent and shall not otherwise have any duty or obligation to determine such
information independently. If the principal of (and premium, if any) and
interest on any Debt Securities is payable in a Foreign Currency and such
Foreign Currency is not available for payment due to the imposition of exchange
controls or other circumstances beyond the control of the Company, then the
Company shall be entitled to satisfy its obligations to Holders under this Indenture
by making such payment in Dollars on the basis of the Market Exchange Rate for
such Foreign Currency on 


 


21

















 


the
latest date for which such rate was established on or before the date on which
payment is due. Any payment made pursuant to this Section 3.11 in Dollars
where the required payment is in a Foreign Currency shall not constitute a
default or Event of Default under this Indenture.


 


SECTION 3.12.      CUSIP Numbers.  The Company in issuing the Debt Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Debt Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Debt Securities, and
any such redemption shall not be affected by any defect in or omission of such
numbers.  The Company will promptly
notify the Trustee in writing of any change in the “CUSIP” numbers.


 


ARTICLE
4.


REDEMPTION
OF DEBT SECURITIES; SINKING FUNDS.


 


SECTION 4.01.      Applicability of Article.  The Company may reserve the right to redeem
and pay before Stated Maturity all or any part of the Debt Securities of any
series, either by optional redemption, sinking fund (mandatory or optional) or
otherwise, by provision therefor in the form of Debt Security for such series
on such terms as are specified in such form or the Board Resolution or Officers’
Certificate delivered pursuant to Section 3.01 or the indenture
supplemental hereto as provided in Section 3.01 with respect to Debt
Securities of such series. Redemption of Debt Securities of any series shall be
made in accordance with the terms of such Debt Securities and, to the extent
that this Article does not conflict with such terms, in accordance with
this Article.


 


SECTION 4.02.      Notice of Redemption;
Selection of Debt Securities. 
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of a series of Debt Securities pursuant to Section 4.01,
the Company shall fix a date for redemption and the Company, or, upon Company
Order, the Trustee in the name of and at the expense of the Company, shall
deliver a notice of such redemption at least 30 and not more than 60 days prior
to the date fixed for redemption to the Holders of Debt Securities so to be
redeemed as a whole or in part. In any case, failure to give such notice or any
defect in the notice to the Holder of any Debt Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.


 


Notice of redemption shall be given in the name and at the expense of
the Company and shall specify the date fixed for redemption, the Redemption
Price at which Debt Securities of any series are to be redeemed, the place of
payment (which shall be at the offices or agencies to be maintained by the
Company pursuant to Section 5.02), that payment of the Redemption Price
will be made upon presentation and surrender of such Debt Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue, and the Section of this
Indenture pursuant to which Debt Securities will be redeemed. In case less than
all Debt Securities of any series are to be redeemed, the notice of redemption
shall also identify the particular Debt Securities to be redeemed as a whole or
in part and shall state that the redemption is for the sinking fund, if such is
the case. In case any Debt Security is to be redeemed in part 


 


22

















 


only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Debt Security, in
the case of a physical Debt Security a new Debt Security or Debt Securities of
such series in aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Holder.


 


If the Debt Securities of any series are to be redeemed, the Company
shall give the Trustee notice, at least 45 days (or such shorter period
acceptable to the Trustee) in advance of the date fixed for redemption, as to
the aggregate principal amount of Debt Securities to be redeemed. Debt
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Debt Securities of such series or any multiple thereof.
Thereupon the Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof to be
redeemed, and shall as promptly as practicable notify the Company of the Debt
Securities or portions thereof so selected. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Debt Securities of any series shall relate, in the case of any
Debt Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security which has been or is to be redeemed.


 


On or prior to 10:00 a.m., New York City time, the date fixed for
redemption specified in the notice of redemption given as provided in this Section 4.02,
the Company will deposit with the Trustee or with the paying agent an amount of
money in the currency in which the Debt Securities of such series are payable
sufficient to redeem on the date fixed for redemption all the Debt Securities
so called for redemption at the appropriate Redemption Price, together with
accrued interest to the date fixed for redemption.


 


The Trustee shall not mail any notice of redemption of any series of
Debt Securities during the continuation of any default in payment of interest
on any series of Debt Securities when due or of any Event of Default, except that
where notice of redemption with respect to any series of Debt Securities shall
have been mailed prior to the occurrence of such default or Event of Default,
the Trustee shall redeem such Debt Securities provided funds are deposited with
it for such purpose.


 


SECTION 4.03.      Payment of Debt Securities
Called for Redemption.  If
notice of redemption has been given as herein provided, the Debt Securities or
portions of Debt Securities with respect to which such notice has been given
shall become due and payable on the date and at the place stated in such notice
at the applicable Redemption Price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Debt Securities or portions thereof at the
Redemption Price, together with interest accrued to said date) interest on the
Debt Securities or portions of Debt Securities so called for redemption shall
cease to accrue, and such Debt Securities and portions of Debt Securities shall
be deemed not to be Outstanding hereunder and shall not be entitled to any
benefit under this Indenture except to receive payment of the Redemption Price,
together with accrued interest to the date fixed for redemption. On
presentation and surrender of such Debt Securities at the place of payment in
said notice specified, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price, together with interest accrued thereon to the date fixed for redemption;



 


23

















 


provided, however, that any installments of interest
becoming due on the date fixed for redemption shall be payable to the Holders
of such Debt Securities, or one or more previous Debt Securities evidencing all
or a portion of the same debt as that evidenced by such particular Debt
Securities, registered as such on the relevant record dates according to their
terms and the provisions of Section 3.08.


 


Upon presentation and surrender of any Debt Security redeemed in part
only, with, if the Company or the Trustee so required, 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, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company,
a new Debt Security or Debt Securities of the same series having the same
interest rate and Stated Maturity and bearing interest from the same date, of
any authorized denominations as requested by such Holder, in aggregate
principal amount equal to the unredeemed portion of the Debt Security so
presented and surrendered.


 


SECTION 4.04.      Exclusion of Certain Debt
Securities from Eligibility for Selection for Redemption.  Debt Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration
and certificate number in a Company Order delivered to a Responsible Officer of
the Trustee at least 45 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity
specifically identified in such written statement directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company.


 


SECTION 4.05.      Provisions with Respect to
any Sinking Funds.  Unless the
form or terms of any series of Debt Securities shall provide otherwise, in lieu
of making all or any part of any mandatory sinking fund payment with respect to
such series of Debt Securities in cash, the Company may at its option (a) deliver
to the Trustee for cancellation any Debt Securities of such series theretofore
acquired by the Company, or (b) receive credit for any Debt Securities of
such series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee for cancellation, then Debt Securities so
delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to the Debt Securities of such series.


 


On or before the 45th day next preceding each sinking fund Redemption
Date, the Company will deliver to the Trustee an Officers’ Certificate or
Company Order specifying (i) the portion of the mandatory sinking fund
payment to be satisfied by deposit of cash in the currency in which the Debt
Securities of such series are payable, by delivery of Debt Securities
theretofore purchased or otherwise acquired by the Company (which Debt
Securities shall accompany such certificate) and by credit for Debt Securities
acquired by the Company and theretofore delivered to the Trustee for
cancellation redeemed by the Company and stating that the credit to be applied
has not theretofore been so applied and (ii) whether the Company intends
to exercise its right, if any, to make an optional sinking fund payment, and,
if so, the amount thereof. Such certificate shall also state that no Event of
Default has occurred and is continuing. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In case of the failure of the Company on or before the 45th
day next preceding each sinking fund 


 


24

















 


Redemption Date to deliver such Officers’ Certificate
or Company Order (or to deliver the Debt Securities specified in this
paragraph), the sinking fund payment due on the next succeeding sinking fund
payment date shall be paid entirely in cash (in the currency described above)
and shall be sufficient to redeem the principal amount of Debt Securities as a mandatory
sinking fund payment, without the option to deliver or credit Debt Securities
as provided in the first paragraph of this Section 4.05 and without the
right to make an optional sinking fund payment as provided herein.


 


If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Debt Securities made in cash (in the currency
described above) shall exceed the minimum authorized denomination set forth in
an Officers’ Certificate pursuant to Section 3.01 or the equivalent in the
currency in which the Debt Securities of such series are payable (or a lesser
sum if the Company shall so request), unless otherwise provided by the terms of
such series of Debt Securities, said cash shall be applied by the Trustee on
the sinking fund Redemption Date with respect to Debt Securities of such series
at the applicable sinking fund Redemption Price with respect to Debt Securities
of such series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 4.03. The Trustee shall
select, in the manner provided in Section 4.02, for redemption on such
sinking fund Redemption Date a sufficient principal amount of Debt Securities
of such series to utilize said cash and shall thereupon cause notice of
redemption of the Debt Securities of such series for the sinking fund to be
given in the manner provided in Section 4.02 (and with the effect provided
in Section 4.03) for the redemption of Debt Securities in part at the
option of the Company. Debt Securities of any series which are identified by
registration and certificate number in an Officers’ Certificate at least 45
days prior to the sinking fund Redemption Date as being beneficially owned by,
and not pledged or hypothecated by, the Company or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be excluded from Debt Securities of such series
eligible for selection for redemption. Any sinking fund moneys not so applied
or allocated by the Trustee to the redemption of Debt Securities of such series
shall be added to the next cash sinking fund payment with respect to Debt
Securities of such series received by the Trustee and, together with such
payment, shall be applied in accordance with the provisions of this Section 4.05.
Any and all sinking fund moneys with respect to Debt Securities of any series
held by the Trustee at the maturity of Debt Securities of such series, and not
held for the payment or redemption of particular Debt Securities of such
series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at maturity.


 


The Trustee shall not convert any currency in which the Debt Securities
of such series are payable for the purposes of such sinking fund application
unless a Company Request is made, and any such conversion agreed to by the
Trustee in response to such request shall be for the account and at the expense
of the Company and shall not affect the Company’s obligation to pay the Holders
in the currency to which such Holder is entitled.


 


On or before each sinking fund Redemption Date provided with respect to
Debt Securities of any series, the Company shall pay to the Trustee in cash in
the currency described above a sum equal to all accrued interest, if any, to
the date fixed for redemption on Debt Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 4.05.


 


25

















 


ARTICLE
5.


PARTICULAR
COVENANTS OF THE COMPANY.


 


SECTION 5.01.      Payment of Principal,
Premium and Interest.  The
Company will duly and punctually pay or cause to be paid (in the currency in
which the Debt Securities of such series are payable) the principal of and
premium, if any, and interest on each of the Debt Securities at the place
(subject to Section 3.03), at the respective times and in the manner
provided in each series of Debt Securities and in this Indenture.


 


SECTION 5.02.      Offices for Notices and
Payments, etc.  (a)  So
long as the Debt Securities of any series remain Outstanding, the Company will
maintain at the Place of Payment, an office or agency where the Debt Securities
may be presented for payment, an office or agency where the Debt Securities may
be presented for registration of transfer and for exchange as provided in this
Indenture, and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities or of this Indenture may be served
and shall give the Trustee written notice thereof and any changes in the
location thereof. In case the Company shall at any time fail to maintain any
such office or agency, or shall fail to give notice to the Trustee of any
change in the location thereof, presentation and demand may be made and notice
may be served in respect of the Debt Securities or of this Indenture at said
office of the Trustee.


 


(b)           In addition to the
office or agency maintained by the Company pursuant to Section 5.02(a),
the Company may from time to time designate one or more other offices or
agencies where the Debt Securities may be presented for payment and presented
for registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designations, as
the Company may deem desirable or expedient; provided,
however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain such office and agency at the Place of Payment, for the purposes
abovementioned. The Company will give to the Trustee prompt written notice of (i) any
such designation or rescission thereof, and (ii) the location of any such
office or agency outside the Place of Payment and of any change of location
thereof.


 


SECTION 5.03.      Appointments to Fill
Vacancies in Trustee’s Office. 
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 8.10, a
Trustee, so that there shall at all times be a Trustee hereunder.


 


SECTION 5.04.      Provisions as to Paying
Agent.  (a) (1) 
Whenever the Company shall have one or more paying agents for any series of
Debt Securities other than the Trustee, it will, on or before each due date of
the principal of (and premium, if any) or interest on any Debt Securities of
such series, deposit with a paying agent a sum sufficient to pay such amount
becoming due, such sum to be held as provided by the Trust Indenture Act of 1939,
and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.


 


(2)           The Company will
cause each paying agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such paying agent shall agree with the Trustee,
subject to the provisions of this Section, that such paying agent will: (i) comply
with the provisions of the Trust Indenture Act of 1939 applicable to it as a
paying agent and (ii) during 


 


26

















 


the
continuance of any default by the Company (or any other obligor upon any series
of Debt Securities) in the making of any payment in respect of the Debt
Securities of such series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such paying agent as such.


 


(b)           If the Company shall
act as its own paying agent, it will, on or prior to each due date of the
principal of and premium, if any, or interest on Debt Securities of any series,
set aside, segregate and hold in trust for the benefit of the Holders of such
Debt Securities a sum sufficient to pay such principal and premium, if any, or
interest so becoming due and will notify the Trustee of any failure to take
such action and of any failure by the Company (or by any other obligor on such
series of Debt Securities) to make any payment of the principal of and premium,
if any, or interest on the Debt Securities when the same shall become due and
payable.


 


(c)           Anything in this Section 5.04
to the contrary notwithstanding, the Company may, at any time, for the purpose
of obtaining a satisfaction and discharge of this Indenture with respect to any
or all series of Debt Securities then Outstanding, or for any other reason, pay
or cause to be paid to the Trustee all sums held in trust by the Company, or
any paying agent hereunder, as required by this Section 5.04, such sums to
be held by the Trustee upon the trusts herein contained.


 


(d)           Anything in this Section 5.04
to the contrary notwithstanding, the agreement to hold sums in trust provided
in this Section 5.04 is subject to Section 12.04.


 


SECTION 5.05.      Certificate to Trustee.  So long as the Debt Securities of any series
remain Outstanding, the Company will deliver to the Trustee on or before 120
days after the end of each fiscal year an Officers’ Certificate, one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating that in the course
of the performance by the signers of their duties as officers of the Company,
they would normally have knowledge of any default by the Company in the
performance or fulfillment or observance, without regard to grace periods or
notice requirements, of any covenants or agreements contained herein during the
preceding fiscal year, stating whether or not they have knowledge of any such
default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof. The Officers’ Certificate need not comply
with Section 14.05.


 


SECTION 5.06.      Waivers of Covenants.  Anything in this Indenture to the contrary
notwithstanding, the Company may fail or omit, in respect of any series of Debt
Securities, and in any particular instance, to comply with a covenant,
agreement or condition contained in Sections 5.02, 5.04 (other than in 5.04(a)(1) and
(2)) or 5.05, or with any additional covenant, agreement or condition contained
in a Board Resolution or Officers’ Certificate establishing such series of Debt
Securities, any indenture supplemental hereto applicable to such series of any
Debt Security of such series if the Company shall have obtained and filed with
the Trustee before or after the time for such compliance the consent in writing
of the Holders of more than 50% in aggregate principal amount of the Debt
Securities of the series affected by such waiver at the time Outstanding,
either waiving such compliance in such instance or generally waiving compliance
with such covenant or condition, but no such waiver shall extend to or affect
any obligation not expressly waived nor impair any right consequent thereon
and, until such waiver 


 


27

















 


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.


 


SECTION 5.07.      Calculation of Original
Issue Discount.  The Company
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the
end of such year and (ii) 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.


 


ARTICLE
6.


HOLDERS’
LISTS AND REPORTS BY THE COMPANY


AND
THE TRUSTEE.


 


SECTION 6.01.      Holders’ Lists.  The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, not more than 15 days after
each Regular Record Date with respect to the Debt Securities of any series, and
at such other times as the Trustee may request in writing, within 30 days after
receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders of Debt
Securities of such series as of a date not more than 15 days prior to the time
such information is furnished; provided,  however, that no such list with respect to any particular
series of Debt Securities need be furnished at any such time if the Trustee is
in possession thereof by reason of its acting as the Debt Security Registrar
for such series designated under Section 3.06 or otherwise.


 


SECTION 6.02.      Preservation and
Disclosure of Lists.  (a) 
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of Debt Securities
contained in the most recent list furnished to it as provided in Section 6.01
or received by the Trustee in the capacity of the Debt Security Registrar (if
so acting) under Section 3.06. The Trustee may destroy any list furnished
to it as provided in Section 6.01 upon receipt of a new list so furnished.


 


(b)           The rights of
Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Debt Securities of any series or of all Debt
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act of 1939.


 


(c)           Every Holder of Debt
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act of
1939.


 


SECTION 6.03.      Reports by the Company.  The Company agrees to file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act of 1939 at the times and in the manner provided pursuant to
such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 


 


28

















 


13 or 15(d) of the Securities Exchange Act of
1934, as amended, shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission; provided
further that any such information, documents or reports filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval (or EDGAR) system or any successor thereto shall be deemed to be
filed with the Trustee. The Trustee shall have no responsibility whatsoever to
determine if any such filings have taken place, provided, however, that the
Company shall promptly notify the Trustee in writing whenever it shall have
made such filings with the Commission. 
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


 


SECTION 6.04.      Reports by the Trustee.  (a)  The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the
times and in the manner provided pursuant thereto. The interval between
transmissions of reports to be transmitted at intervals shall be twelve months
or such shorter time required by the Trust Indenture Act of 1939. If the Trust
Indenture Act of 1939 does not specify the date on which a report is due, the
such report shall be due on July 15 of each year following the first
issuance of Debt Securities.


 


(b)           A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which Debt Securities of any series are
listed, with the Commission and with the Company. The Company will promptly
notify the Trustee in writing when the Debt Securities of any series are listed
on any stock exchange and of any delisting thereof.


 


ARTICLE
7.


REMEDIES
OF THE TRUSTEE AND HOLDERS


ON
EVENT OF DEFAULT.


 


SECTION 7.01.      Events of Default.  “Event of Default”, with respect to any
series of Debt Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether 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 such event is either
inapplicable to such series or it is specifically deleted or modified in the
Board Resolution, Officers’ Certificate or supplemental indenture under which
such series of Debt Securities is issued or in the form of Debt Security for
such series:


 


(a)           default in the
payment of any installment of interest upon any Debt Security of such series as
and when the same shall become due and payable, and continuance of such default
for a period of 30 days;


 


(b)           default in the
payment of the principal of and premium, if any, on any Debt Security of such
series as and when the same shall become due and payable either at maturity,
upon redemption, by declaration of acceleration or otherwise;


 


29

















 


(c)           default in the
payment or satisfaction of any sinking fund payment or analogous obligation, if
any, with respect to the Debt Securities of such series as and when the same
shall become due and payable by the terms of the Debt Securities of such
series, and continuance of such default for a period of 30 days;


 


(d)           failure on the part
of the Company duly to observe or perform any of the covenants, warranties or
agreements on the part of the Company in respect of the Debt Securities of such
series in this Indenture (other than a covenant, warranty or agreement a
default in whose performance or whose breach is specifically dealt with
elsewhere in this Section) continued for a period of 90 days after the date on
which written notice of such failure, specifying such failure and requiring the
same to be remedied, shall have been given to the Company by the Trustee, by
registered mail, or overnight courier, or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of such series;


 


(e)           a decree or order by
a court having jurisdiction in the premises shall have been entered adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Company under the Federal bankruptcy laws or any
other similar applicable Federal or state law, and such decree or order shall
have continued undischarged and unstayed for a period of 60 days; or a decree
or order of a court having jurisdiction in the premises for the appointment of
a receiver or liquidator or trustee or assignee or other similar official in
bankruptcy or insolvency of the Company or of all or substantially all of its
property, or for the winding up or liquidation of its affairs, shall have been
entered, and such decree or order shall have continued undischarged and
unstayed for a period of 60 days;


 


(f)            the Company shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall consent
to the filing of a bankruptcy proceeding against it, or shall file a petition
or answer or consent seeking an arrangement or a reorganization under the
Federal bankruptcy laws or any other similar applicable Federal or state law,
or shall consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee or other similar
official in bankruptcy or insolvency of it or of all or substantially all of
its property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due; or


 


(g)           any other Event of
Default provided in the Board Resolution, Officers’ Certificate or the
supplemental indenture under which such series of Debt Securities is issued or
in the form of Debt Security for such series;


 


then and in each
and every such case, so long as such Event of Default with respect to any
series of Debt Securities for which there are Debt Securities Outstanding
occurs and is continuing (other than an Event of Default specified in clause (e) or
(f) of Section 7.01) and shall not have been remedied or waived to
the extent permitted by the terms of this Indenture, unless the principal of
all of the Debt Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of such series, by notice
in writing to the Company (and to the Trustee if given by Holders), may declare
the principal (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Debt Securities of such
series and the interest


 


30






 












 


accrued thereon to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture or
in the Debt Securities of such series contained to the contrary notwithstanding.  If an Event of Default specified in clause (e) or
(f) of Section 7.01 occurs and is continuing, then the principal
amount of (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms thereof as due and payable upon acceleration) and any
accrued and unpaid interest on that series shall immediately become due and
payable without any declaration or other act on the part of the Trustee or any
Holder.  This provision, however, is
subject to the condition that if, at any time after the principal of the Debt
Securities of such series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay in the currency in which the
Debt Securities of such series are payable all matured installments of interest
upon all of the Debt Securities and the principal of and premium, if any, on
any and all Debt Securities of such series which shall have become due
otherwise than by such declaration (with interest on overdue installments of
interest to the extent that payment of such interest is enforceable under
applicable law and on such principal and premium, if any, at the rate borne by
the Debt Securities of such series or as otherwise provided in the form of Debt
Security for such series, to the date of such payment or deposit) and the expenses
of the Trustee (subject to Section 8.06), and any and all defaults under
this Indenture, other than the nonpayment of principal of and accrued interest
on Debt Securities of such series which shall have become due by such
declaration, shall have been cured or shall have been waived in accordance with
Section 7.07 or provision shall have been made therefor — then and in
every such case the Holders of at least a majority in aggregate principal
amount of the Debt Securities of such series then Outstanding, by written
notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon.


 


In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the Holders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the Holders shall continue as though no
such proceeding had been taken.


 


SECTION 7.02.      Payment of Debt Securities
Upon Default; Suit Therefor. 
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any Debt Security of any series as
and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in
the payment of the principal of and premium, if any, on any Debt Security of
any series as and when the same shall have become due and payable, whether at
maturity of the Debt Security or upon redemption or by declaration or otherwise
or (c) in case default shall be made in the making or satisfaction of any
sinking fund payment or analogous obligation with respect to the Debt
Securities of any series when the same becomes due by the terms of the Debt
Securities of any series, and such default shall have continued for a period of
30 days—then the Company will pay to the Trustee, for the benefit of the
Holders of any such series, the whole amount that 


 


31

















 


then shall have become due and payable on any such
Debt Securities for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and premium, if any, and
(to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest at the rate borne by the Debt
Securities of such series or as otherwise provided in the form of Debt Security
of such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
compensation to the Trustee, its agents, attorneys and counsel, and any
expenses or liabilities incurred and advances made by the Trustee, except
compensation or advances arising, or expenses or liabilities incurred, as a
result of the Trustee’s gross negligence or willful misconduct.


 


In case the Company shall fail forthwith to pay such amounts, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor on such Debt Securities
and collect, in the manner provided by law out of the property of the Company
or any other obligor on such Debt Securities wherever situated, the moneys
adjudged or decreed to be payable. If any Event of Default with respect to any
series of Debt Securities occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Debt Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities
of any series under the Federal bankruptcy laws or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities
of any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 7.02, shall be
entitled and empowered by intervention in such proceedings or otherwise, (a) to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Debt Securities of such series, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Debt Securities of such series allowed in
such judicial proceedings relative to the Company or any other obligor on such
Debt Securities, its or their creditors, or its or their property, (b) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of any Debt Securities of any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and (c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders of the
Debt 


 


32

















 


Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Holders, to pay to the Trustee such amount as shall
be sufficient to cover compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred and advances made by
the Trustee except compensation or advances arising, or expenses or liabilities
incurred, as a result of the Trustee’s gross negligence or willful misconduct.


 


Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder (except, as aforesaid, for the
election of a trustee in bankruptcy or other Person performing similar
functions) in any such proceeding.


 


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


 


In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Debt Securities in respect to which such action was taken, and
it shall not be necessary to make any Holders of such Debt Securities parties
to any such proceedings.


 


SECTION 7.03.      Application of Moneys
Collected by Trustee.  Any
moneys collected by the Trustee pursuant to Section 7.02 and any other
money or property distributed in respect of the Company’s obligations under
this Indenture after an Event of Default shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Debt Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:


 


FIRST:            To the payment of costs and expenses
of collection and compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all advances
made, by the Trustee except compensation or advances arising, or expenses or
liabilities incurred, as a result of its gross negligence or willful
misconduct, and any other amounts owing the Trustee under Section 8.06;


 


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


 


33

















 


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


 


FOURTH:      To the payment of any surplus then
remaining to the Company, its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same.


 


SECTION 7.04.      Proceedings by Holders.  No Holder of any Debt Security of any series
shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law or in
bankruptcy or otherwise upon or under or with respect to this Indenture or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding (and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 7.07),
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Debt Security of every series with every other taker and
Holder and the Trustee, that no one or more Holders of Debt Securities shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of such Debt Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder, or to enforce any right under this
Indenture (it being understood that the Trustee does not have an affirmative
duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders), except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Debt Securities.


 


SECTION 7.05.      Proceedings by Trustee.  In case of an Event of Default hereunder the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.


 


34

















 


SECTION 7.06.      Remedies Cumulative and
Continuing.  All powers and
remedies given by this Article Seven to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee or
the Holders, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture, and
no delay or omission of the Trustee or of any Holder to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to the provisions of Section 7.04,
every power and remedy given by this Article Seven or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders.


 


SECTION 7.07.      Direction of Proceedings
and Waiver of Defaults by Majority of Holders.  The Holders of a majority in aggregate
principal amount of the Outstanding Debt 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 Debt Securities by this Indenture;
provided, however, that (subject to the provisions of Section 8.01) the
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine upon advice of counsel that the action or proceeding so
directed may not lawfully be taken or would be materially and unjustly
prejudicial to the rights of Holders not joining in such direction or if the
Trustee in good faith shall determine that the action or proceeding so directed
would involve the Trustee in personal liability or if the Trustee in good faith
shall so determine that the actions or forebearances specified in or pursuant
to such direction would be unduly prejudicial to the interests of Holders of
the Debt Securities of all series not joining in the giving of said direction,
it being understood that (subject to Section 8.01) the Trustee shall have
no duty to ascertain whether or not such actions or forebearances are duly
prejudicial to such Holders. The Trustee may take any other action deemed
proper by the Trustee not inconsistent with such direction. Subject to Section 7.01,
the Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all the Debt
Securities of such series waive any past default or Event of Default hereunder
and its consequences except a default in the payment of principal of or
premium, if any, or interest on such Debt Securities, or a default in the
making of any sinking fund payment with respect to such Debt Securities. Upon
any such waiver the Company, the Trustee and the Holders of such Debt
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon. Whenever
any default or Event of Default shall have been waived as permitted by this Section 7.07,
said default or Event of Default shall for all purposes of the Debt Securities
and this Indenture be deemed to have been cured and to be not continuing.


 


This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act of 1939 and such Sections
316(a)(1)(A) and Section 316(a)(1)(B) are hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act of 1939.


 


SECTION 7.08.      Notice of Defaults.  Within 90 days after the occurrence of any
default hereunder with respect to the Debt Securities of any series, the
Trustee shall transmit by first-class mail, postage prepaid, to all Holders of
Debt Securities of such series, as their names 


 


35

















 


and addresses appear in the Debt Security Register,
notice of such default hereunder known to a Responsible Officer of 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 on any Debt Security of such series or in the payment of
any sinking fund installment with respect to Debt Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as a
trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of such series; and provided, further, that in the
case of any default of the character specified in Section 7.01(d) with
respect to Debt Securities of such series, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term “default” means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to Debt
Securities of such series.


 


SECTION 7.09.      Undertaking to Pay Costs.  In any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs, including legal fees and expenses against any such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act of 1939; provided that neither this Section nor the Trust Indenture
Act of 1939 shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee, and any provision of the Trust Indenture Act of 1939 to such
effect is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act of 1939.


 


SECTION 7.10.      Unconditional Right of
Holders to Receive Principal, Premium and Interest.  Notwithstanding any other provision in this
Indenture, the Holder of any Debt Security shall have the rights, which are
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 3.08) interest on such Debt Security on the
respective Stated Maturities expressed in such Debt Security (or in the case of
redemption or repayment, on the date for redemption or repayment, as the case
may be) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.


 


ARTICLE
8.


CONCERNING
THE TRUSTEE.


 


SECTION 8.01.      Duties and Responsibilities of Trustee.


 


(a)           Except during the continuance of an
Event of Default, the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee.


 


(b)           In case 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 their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.


 


36

















 


(c)           No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(1)           this Subsection (c) shall not be
construed to limit the effect of Subsections (a) or (d) of this Section 8.01;


 


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


 


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


 


(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 relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 8.01.


 


SECTION 8.02.      Reliance on Documents,
Opinions, etc..  Subject to the
provisions of Section 8.01,


 


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


 


(b)           any request,
direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by Company Request or Company Order (unless otherwise
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;


 


(c)           the Trustee may
consult with counsel of its selection and the 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 reliance thereon;


 


37

















 


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


 


(e)           the Trustee shall
not be liable for any action taken, suffered or omitted to be taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;


 


(f)            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, consent, order, approval, bond, debenture, note, or other paper or
document, unless requested in writing to do so by the Holders of not less than
a majority in principal amount of such Debt Securities then Outstanding; provided, however, that
the expenses of every such investigation shall be paid by the Company or, if
paid by the Trustee, shall be repaid by the Company upon demand; and provided, further, that
if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to so
proceeding;


 


(g)           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 liable or responsible for any misconduct, bad faith or negligence on the
part of any agent or attorney appointed with due care by it hereunder;


 


(h)           the Trustee shall
not be deemed to have notice or be charged with knowledge of any default or
Event of Default unless written notice of such default or Event of Default from
the Company or any Holder is received by a Responsible Officer of the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Debt Securities and this Indenture;


 


(i)            the rights,
privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder;


 


(j)            the permissive
rights of the Trustee enumerated herein shall not be construed as duties;


 


(k)           in no event shall
the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action;


 


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


 


38

















 


(m)          the Trustee may
request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.


 


SECTION 8.03.      No Responsibility for
Recitals, etc.  The recitals
contained herein and in the Debt Securities (except in the Trustee’s
certificate of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities of any series. The Trustee represents that
it is duly authorized to execute and deliver this Indenture. Neither the
Trustee nor the Authenticating Agent shall be accountable for the use or
application by the Company or any Debt Securities or the proceeds of any Debt
Securities authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.


 


SECTION 8.04.      Trustee and Agents May Own
Debt Securities.  The Trustee,
any paying agent, or any agent of the Trustee or the Company under this
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities of any series with the same rights it would have if
it were not Trustee or such agent and, subject to Sections 8.08 and 8.13, if
operative, may otherwise deal with the Company and receive, collect, hold, and
retain collections from the Company with the same rights it would have if it
were not the Trustee or such agent.


 


SECTION 8.05.      Moneys to be Held in Trust.  Subject to the provisions of Section 12.04,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any paying agent shall be under any liability for
interest on, or to invest, any moneys received by it hereunder except such as
it may agree with the Company to pay thereon. So long as no Event of Default
with respect to the Debt Securities of any series shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the receipt of a Company Order.


 


SECTION 8.06.      Compensation and Expenses
of Trustee.  The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed between the Company
and the Trustee (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust), and the Company will pay
or reimburse the Trustee upon its request for all expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the compensation and the expenses and
disbursements of its counsel and all persons not regularly in its employ and
any amounts paid by the Trustee to any Authenticating Agent pursuant to Section 8.14)
except any such expense, disbursement or advance as may arise from its gross
negligence or willful misconduct. The Company also covenants to indemnify the
Trustee for, and to hold it harmless against, any and all loss, damage, claims,
liability or expense incurred without gross negligence or bad faith on the part
of the Trustee and arising out of or in connection with this Indenture,
including the acceptance or administration of this trust, or the performance of
its duties hereunder, including the current payment of all costs and expenses
of defending itself against any claim (whether asserted by the Company, a
Holder or any other Person) of liability in the premises. The obligations of
the 


 


39

















 


Company under this Section 8.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee as
such. In addition to, but without prejudice to its other rights under this indenture,
when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01(e) or Section 7.01(f),
the expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.


 


“Trustee” for purposes of this Section shall
include any predecessor Trustee; provided, however, that the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.


 


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


 


SECTION 8.07.      Officers’ Certificate as
Evidence.  Subject to the
provisions of Section 8.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or willful
misconduct on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate conforming to the requirements of this
Indenture delivered to the Trustee, and such Officers’ Certificate, in the
absence of gross negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken or omitted by it
under the provisions of this Indenture upon the faith thereof.


 


SECTION 8.08.      Conflicting Interest of
Trustee.  If the Trustee has
or shall acquire any conflicting interest within the meaning of the Trust
Indenture Act of 1939, the Trustee shall either eliminate such conflicting
interest or resign in the manner provided by, and subject to the provisions of,
the Trust Indenture Act of 1939 and this Indenture.


 


SECTION 8.09.      Eligibility of Trustee.  There shall at all times be a Trustee with
respect to each series of Debt Securities hereunder which shall be a Person
organized and doing business under the laws of the United States or any state
or territory thereof or of the District of Columbia authorized under such laws
to exercise trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal, state,
territorial, or District of Columbia authority and willing to act as Trustee
hereunder. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 8.09, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee with respect to any series of Debt
Securities shall cease to be eligible in accordance with the provisions of this
Section 8.09, such Trustee shall resign immediately in the manner and with
the effect specified in Section 8.10.


 


40






 












 


SECTION 8.10.    Resignation or Removal of
Trustee.  (a)  The
Trustee may at any time resign with respect to any series of Debt Securities by
giving written notice by first class mail of such resignation to the Company
and to the Holders of such series of Debt Securities at their addresses as they
shall appear on the Debt Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with
respect to such series by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no successor
trustee with respect to such series shall have been so appointed and have
accepted appointment within 60 days after the mailing of such notice of
resignation to the Holders, the resigning Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of such series of Debt Securities who has been
a bona fide Holder of a Debt Security or Debt Securities of such series for at
least six months may, subject to the provisions of Section 7.09, on behalf
of such Holder and all others similarly situated, petition any such court for
the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint such successor trustee.


 


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


 


(1)           the Trustee shall
fail to comply with the provisions of Section 8.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Debt Security or Debt Securities of such series for at least six months, unless
the Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of
the Trust Indenture Act of 1939,


 


(2)           the Trustee shall
cease to be eligible in accordance with the provisions of Section 8.09 and
shall fail to resign after written request therefor by the Company or by any
such Holder of a note of such series, or


 


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


 


then, in any such
case, the Company may remove the Trustee with respect to such series and
appoint a successor trustee for such series by Company Order, one copy of which
Company Order shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.09, any
Holder who has been a bona fide Holder of a Debt Security or Debt Securities of
such series for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove such Trustee and appoint such successor
trustee.


 


(c)           The Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of any series
may at any time remove the Trustee with respect to such series by delivering to
the Trustee so removed, to the successor trustee so appointed and to the
Company 


 


41

















 


the
evidence provided for in Section 9.01 of the action in that regard taken
by the Holders, and nominate a successor Trustee which shall be deemed
appointed as successor Trustee unless within ten days after such nomination the
Company objects thereto, in which case the Trustee so removed or any Holder of
a Debt Security or Debt Securities of such series, upon the terms and
conditions and otherwise as in subsection (a) of this Section 8.10
provided, may petition any court of competent jurisdiction for an appointment
of a successor Trustee with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed and have accepted
appointment within 60 days after the mailing of such notice of removal, the
Trustee being removed may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor trustee.


 


(d)           Any resignation or
removal of the Trustee with respect to all or any series of Debt Securities and
any appointment of a successor Trustee pursuant to any of the provisions of
this Section 8.10 shall become effective upon acceptance of appointment by
the successor Trustee as provided in Section 8.11.


 


SECTION 8.11.    Acceptance by Successor
Trustee.  Any successor
Trustee appointed as provided in Section 8.10 shall execute, acknowledge
and deliver to the Company and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee shall become effective with respect to all or any
series as to which it is resigning as Trustee, and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder with
respect to all or any such series, with like effect as if originally named as
Trustee herein with respect to all or any such series; nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.06, execute and deliver an instrument transferring
to such successor Trustee all the rights and powers of the Trustee with respect
to all or any such series so ceasing to act. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such Trustee with
respect to all or any series as to which it is resigning as Trustee, to secure
any amounts and shall be entitled to any indemnities then due it pursuant to
the provisions of Section 8.06.


 


No successor Trustee shall accept appointment as provided in this Section 8.11
unless at the time of such acceptance such successor Trustee shall be qualified
under the provisions of Section 8.08 and eligible under the provisions of Section 8.09.


 


Upon acceptance of appointment by a successor Trustee with respect to
all or any series of Debt Securities as provided in this Section 8.11, the
Company shall mail notice of the succession of such Trustee hereunder to the
Holders of Debt Securities of such series at their addresses as they shall
appear on the Debt Security Register. If the Company fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Company.


 


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


 


SECTION 8.12.    Succession by Merger, etc.  Subject to Sections 8.08 and 8.09, any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto.


 


In case at the time any successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver such
Debt Securities so authenticated; and in case at that time any of the Debt
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Debt Securities in the name of such successor Trustee; and in
all such cases such certificate shall have the full force which it is anywhere
in the Debt Securities or in this Indenture provided that the certificate of
the Trustee shall have.


 


SECTION 8.13.    Limitation on Rights of
Trustee as a Creditor.  If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Company (or any such other obligor).


 


SECTION 8.14.    Authenticating Agents.  There may be an Authenticating Agent or
Authenticating Agents appointed by the Trustee from time to time with power to
act on its behalf and subject to its direction in the authentication and
delivery of any series of Debt Securities issued upon original issuance,
exchange, transfer or redemption thereof as fully to all intents and purposes
as though such Authenticating Agent (or Authenticating Agents) had been
expressly authorized to authenticate and deliver such Debt Securities, and Debt
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as though authenticated by
the Trustee hereunder. For all purposes of this Indenture, the authentication
and delivery of Debt Securities by any Authenticating Agent pursuant to this Section 8.14
shall be deemed to be the authentication and delivery of such Debt Securities “by
the Trustee”, and whenever this Indenture provides that “the Trustee shall
authenticate and deliver” Debt Securities or that Debt Securities “shall have
been authenticated and delivered by the Trustee”, such authentication and
delivery by any Authenticating Agent shall be deemed to 


 


43

















 


be authentication and delivery by the Trustee. Any
such Authenticating Agent shall at all times be a Person organized and doing
business under the laws of the United States of America or of any state or
territory thereof or the District of Columbia, with a combined capital and
surplus of at least $50,000,000 and authorized under such laws to act as an
authenticating agent, duly registered to act as such, if and to the extent
required by applicable law and subject to supervision or examination by Federal
or state authority. If such Person publishes reports of its condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 8.14 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section 8.14,
or to be duly registered if and to the extent required by applicable law and
regulations, it shall resign immediately in the manner and with the effect
herein specified in this Section 8.14.


 


Whenever reference is made in this Indenture to the authentication and delivery
of Debt Securities of any series by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by its Authenticating Agent appointed with
respect to the Debt Securities of such series and a certificate of
authentication executed on behalf of the Trustee by its Authenticating Agent
appointed with respect to the Debt Securities of such series.


 


Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, consolidation or conversion to which any Authenticating Agent shall
be a party, or any Person succeeding to all or substantially all the corporate
trust or the authenticating agency business of any Authenticating Agent, shall
be the successor of such Authenticating Agent hereunder, if such successor
Person is otherwise eligible under this Section 8.14, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authenticating Agent or such successor Person.


 


In case at the time such successor to any such agency shall succeed to
such agency any of the Debt Securities shall have been authenticated but not
delivered, any such successor to such Authenticating Agent may adopt the
certificate of authentication of any predecessor Authenticating Agent and
deliver such Debt Securities so authenticated; and in case at that time any of
the Debt Securities shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Debt Securities either in the name
of any predecessor hereunder or in the name of the successor Authenticating
Agent; and in all cases such certificate shall have the full force which it has
anywhere in the Debt Securities or in this Indenture provided that the
certificate of the predecessor Authenticating Agent shall have had such force; provided,  however, that
the right to adopt the certificate of authentication of any predecessor Authenticating
Agent or to authenticate Debt Securities in the name of any predecessor
Authenticating Agent shall apply only to its successor or successors by merger,
conversion or consolidation.


 


Any Authenticating Agent may at any time resign as Authenticating Agent
with respect to any series of Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to any series of
Debt Securities by giving written notice of termination to such 


 


44

















 


Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time Authenticating Agent shall cease to be eligible under this Section 8.14,
the Trustee may, and shall, upon request of the Company, promptly use its best
efforts to appoint a successor Authenticating Agent.


 


Upon the appointment, at any time after the original issuance of any of
the Debt Securities, of any successor, additional or new Authenticating Agent,
the Trustee shall give written notice of such appointment to the Company and
shall at the expense of the Company mail notice of such appointment to all
Holders of Debt Securities of such series as the names and addresses of such
Holders appear on the Debt Security Register.


 


Any successor Authenticating Agent with respect to any series of Debt
Securities upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like
effect as though originally named as an Authenticating Agent herein with
respect to such series. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 8.14 and duly
registered if and to the extent required under applicable law and regulations.


 


Any Authenticating Agent by the acceptance of its appointment with
respect to any series of Debt Securities shall be deemed to have agreed with
the Trustee that: (a) it will perform and carry out the duties of an
Authenticating Agent as herein set forth with respect to such series, including
the duties to authenticate and deliver Debt Securities when presented to it in
connection with exchanges, registrations of transfer or redemptions thereof; (b) it
will keep and maintain, and furnish to the Trustee from time to time as
requested by the Trustee appropriate records of all transactions carried out by
it as Authenticating Agent and will furnish the Trustee such other information
and reports as the Trustee may reasonably require; (c) it is eligible for
appointment as Authenticating Agent under this Section 8.14 and will
notify the Trustee promptly if it shall cease to be so qualified; and (d) it
will indemnify the Trustee against any loss, liability or expense incurred by
the Trustee and will defend any claim asserted against the Trustee by reason of
any acts or failures to act of the Authenticating Agent with respect to such
series but it shall have no liability for any action taken by it at the
specific written direction of the Trustee.


 


The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation and expenses for its services, and the Trustee
shall have no liability for such payments.


 


The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03,
8.04, 8.06 (insofar as it pertains to indemnification), 9.01, 9.02 and 9.03
shall bind and inure to the benefit of each Authenticating Agent to the same
extent that they bind and inure to the benefit of the Trustee.


 


If an appointment with respect to one or more series is made pursuant
to this Section 8.14, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an
alternate certificate of authentication in the following form:


 


45

















 


This
is one of the Debt Securities of the series designated herein issued under the
within-mentioned Indenture.


 


	
  WELLS FARGO BANK, NATIONAL ASSOCIATION,

  As Trustee

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION,

  As Trustee

  
	
   

  	
   

  
	
  -OR-

  	
   

  
	
   

  	
   

  
	
  By:

  	
  By:

  	
   

  	
  ,

  
	
  Authorized
  Signatory

  	
  as
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Authorized
  Signatory

  



 


SECTION 8.15.    Preferential Collection of
Claims Against the Company.  If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Company (or any such other obligor).


 


SECTION 8.16.    Trustee’s Application for
Instructions from the Company. 
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be
effective.  The Trustee shall not be
liable for any action taken by, or omission of, the Trustee in accordance with a
proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the
date any officer of the Company actually receives such application, unless any
such officer shall have consented in writing to any earlier date) unless prior
to taking any such action (or the effective date in the case of an omission),
the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.


 


ARTICLE
9.


CONCERNING
THE HOLDERS.


 


SECTION 9.01.    Action by Holders.  Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the
Debt Securities of any series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action) the fact that at the time of taking any such action the
Holders of such specified percentage of such series have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by Holders of such series in person or by agent or proxy appointed in
writing.


 


SECTION 9.02.    Proof of Execution by
Holders.  Subject to the
provisions of Sections 8.01 and 8.02, proof of the execution of any instrument
by a Holder or such Holder’s agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the 


 


46

















 


Trustee. The ownership of Debt Securities shall be
provided by the Debt Security Register or by a certificate of the Debt Security
Registrar with respect to a series of Debt Securities.


 


SECTION 9.03.    Who Are Deemed Absolute
Owners.  The Company, the
Trustee with respect to a series of Debt Securities, and any agent of the
Trustee or the Company under this Indenture may deem the Person in whose name
such Debt Security shall be registered upon the Debt Security Register to be,
and may treat such Person as, the absolute owner of such Debt Security (whether
or not such Debt Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Company, the
Trustee or any such agent) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and interest on such Debt
Security and for all other purposes; and neither the Company nor the Trustee
nor any such agent shall be affected by any notice to the contrary.


 


SECTION 9.04.    Company-Owned Debt
Securities Disregarded.  In
determining whether the Holders of the requisite aggregate principal amount of
Debt Securities of any series have concurred in any direction or consent under
this Indenture, Debt Securities of such series which are owned by the Company
or any other obligor upon such Debt Securities or any Affiliate of the Company
or such other obligor (except in the case in which the Company or such other
obligor or affiliate owns all Debt Securities Outstanding under the Indenture,
or all Outstanding Debt Securities of each such series, as the case may be,
without regard to this proviso) shall be disregarded and deemed not to be
Outstanding for the purpose of any such determinations; provided,
however, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction or consent only such Debt Securities which a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding notwithstanding this Section 9.04 if the pledgee shall
establish to the satisfaction of the Trustee the right of the pledgee to vote
such Debt Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. The Company shall furnish
to the Trustee promptly an Officers’ Certificate listing and identifying all
Debt Securities of a series, if any, known by the Company to be owned or held
by or for the account of the Company or any other obligor on such Debt
Securities or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other
obligor on such Debt Securities; and, subject to the provisions of Section 8.01,
the Trustee shall be entitled to accept such Officers’ Certificates as
conclusive evidence of the facts therein set forth and of the fact that all
such Debt Securities not listed therein are Outstanding for the purpose of any
such determination.


 


SECTION 9.05.    Revocation of Consents;
Future Holders Bound.  At any
time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.01,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action, any Holder of a Debt Security which
is shown by the evidence to be included in the Debt Securities the Holders of
which have consented to or are bound by consents to such action, may, by filing
written notice with the Trustee at the Corporate Trust Office and upon proof of
holding as provided in Section 9.02, revoke such action so far as concerns
such Debt Security. Except as aforesaid any such action taken by the Holder of
any Debt Security shall be conclusive and binding upon such 


 


47

















 


Holder and upon all future Holders and owners of such
Debt Security and of any Debt Security issued on transfer thereof or in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon any such Debt Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Debt Securities
specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all of
the Debt Securities affected by such action.


 


ARTICLE
10.


SUPPLEMENTAL
INDENTURES.


 


SECTION 10.01. Supplemental Indentures
without Consent of Holders. 
The Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for one
or more of the following purposes:


 


(a)           to evidence the
succession of another Person to the Company, or successive successions, and the
assumption by the successor Person of the covenants, agreements and obligations
of the Company pursuant to Articles Five and Ten hereof;


 


(b)           to add to the
covenants of the Company such further covenants, restrictions, conditions or
provisions as the Board of Directors shall consider to be for the protection of
the Holders of Debt Securities of any or all series, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions, conditions or provisions a default or an
Event of Default with respect to such series permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth; provided, however, that
in respect of any such additional covenant, restriction or condition, 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;


 


(c)           to cure any
ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture or to make any
changes hereto that are required by law;


 


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


 


(e)           to make such other
provisions in regard to matters or questions arising under this Indenture as
shall not materially adversely affect the interests of the Holders of the Debt
Securities;


 


(f)            to evidence and
provide for the acceptance of appointment by another Person as a successor
Trustee hereunder with respect to one or more series of Debt Securities and to
add to 


 


48

















 


or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to Section 8.11;


 


(g)           to modify, amend or
supplement this Indenture in such a manner as to permit the qualification of
any indenture supplemental hereto under the Trust Indenture Act of 1939 as then
in effect, except that nothing herein contained shall permit or authorize the
inclusion in any indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act of 1939;


 


(h)           to provide for the
issuance under this Indenture of Debt Securities in coupon form (including Debt
Securities registrable as to principal only) and to provide for exchangeability
of such Debt Securities with Debt Securities of the same series issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;


 


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


 


(j)            to secure the Debt
Securities or add guarantees thereof; or


 


(k)           to establish any
additional form of Debt Security, as permitted by Section 2.02, and to
provide for the issuance of any additional series of Debt Securities, as
permitted by Section 3.01, and to set forth the terms thereof.


 


The Trustee is hereby required to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.


 


Any supplemental indenture authorized by the provisions of this Section 10.01
may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debt Securities at the time Outstanding, notwithstanding
any of the provisions of Section 10.02.


 


SECTION 10.02. Supplemental Indentures
with Consent of Holders.  With
the consent (evidenced as provided in Section 9.01) of the Holders of
greater than 50% in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental indenture (all such
Holders voting as a single class), by act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Debt Securities of each series under this Indenture;
provided, however,
that no such supplemental indenture shall, without the consent of the Holders
all of the Outstanding Debt Securities of each series affected, (a) extend
the fixed maturity of any Debt Security of such series, or reduce the rate or
extend the time of payment of interest thereon, 


 


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or reduce the principal amount thereof or any premium
thereon, or make the principal thereof or interest or premium thereon payable
in any coin or currency other than that provided in the Debt Securities of such
series or (b) reduce the aforesaid percentage of Debt Securities of a
series, the Holders of which are required to consent (1) to any such
supplemental indenture, (2) to rescind and annul a declaration that any
Debt Securities of such series are due and payable as a result of the
occurrence of an Event of Default, (3) to waive any past default under the
Indenture and its consequences or (4) to waive compliance with Sections
5.02, 5.04 (other than 5.04(a)(1) and (2)) or 5.05, or with any additional
covenant, agreement or condition contained in a Board Resolution or Officers’
Certificate establishing such series of Debt Securities, any indenture
supplemental hereto applicable to such series or any Debt Security of such
series.


 


Upon the Trustee’s receipt of a Company Request, accompanied by a copy
of a Board Resolution certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders of Debt
Securities as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.


 


It shall not be necessary for the consent of the Holders of Debt
Securities under this Section 10.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


SECTION 10.03. Effect of Supplemental
Indentures.  Upon the
execution of any supplemental indenture pursuant to the provisions of this Article Ten,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Debt Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.


 


SECTION 10.04. Notation on Debt
Securities.  Debt Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Ten may bear a notation as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Debt Securities of any series so modified as to conform to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Outstanding Debt Securities of such series upon
receipt by the Trustee of a Company Order.


 


SECTION 10.05. Evidence of Compliance of
Supplemental Indenture to be Furnished Trustee.  The Trustee, subject to the provisions of
Sections 8.01 and 8.02, shall receive, and shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Ten and is authorized and permitted by this
Indenture.


 


50






 












 


ARTICLE
11.


CONSOLIDATION,
MERGER, SALE AND CONVEYANCE.


 


SECTION 11.01.    Company May Consolidate,
etc., on Certain Terms. 
Nothing contained in this Indenture or in any of the Debt Securities
shall prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all of the property of the Company to any other Person
(whether or not affiliated with the Company) authorized to acquire and operate
the same; provided, however, and the Company hereby covenants and agrees, that
any such consolidation, merger, sale, conveyance or lease shall be upon the
condition that (a) immediately after such consolidation, merger, sale,
conveyance or lease the Person (whether the Company or such other Person)
formed by or surviving any such consolidation or merger, or to which such sale,
conveyance or lease shall have been made, shall not be in default in the
performance or observance of any of the terms, covenants and conditions of this
Indenture to be kept or performed by the Company; (b) the Person (if other
than the Company) formed by or surviving any such consolidation or merger or to
which such sale, conveyance or lease shall have been made, shall be shall be an
entity organized and validly existing under the laws of any country that is a
member of the European Union as currently constituted, or Canada or any
province thereof, the United States or any State thereof or the District of
Columbia; provided that in the case where the surviving Person is not a
corporation, a co-obligor of the Debt Securities is a corporation; and (c) the
due and punctual payment of the principal of and premium, if any, and interest
on all of the Debt Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee by the Corporation (if other than the
Company) formed by such consolidation, or into which the Company shall have
been merged, or by the Person which shall have acquired or leased such
property.


 


SECTION 11.02.    Successor Entity  to be Substituted.  In case of any such consolidation, merger,
sale, conveyance or lease and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to performed or observed by the Company, such successor Person
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the party of the first part, and (except in the
event of a conveyance by way of lease) the predecessor Person shall be relieved
of any further obligation under this Indenture and the Debt Securities.


 


In case of any such consolidation, merger, sale, conveyance or lease
such changes in phraseology and form (but not in substance) may be made in the
Debt Securities thereafter to be issued as may be appropriate.


 


SECTION 11.03.    Opinion of Counsel to Be
Given Trustee.  The Trustee,
subject to Sections 8.01 and 8.02, shall receive an Officers’ Certificate and
an Opinion of Counsel as 


 


51

















 


conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption complies with the provisions
of this Article Eleven and that all conditions precedent herein provided
relating to such transactions have been complied with.


 


ARTICLE
12.


SATISFACTION
AND DISCHARGE OF INDENTURE.


 


SECTION 12.01.    Satisfaction, Discharge
and Defeasance of Debt Securities of any Series.  The Company shall be deemed to have paid and
discharged the entire indebtedness on all the Debt Securities of a series, the
provisions of this Indenture (except as to (x) the rights of Holders of
Debt Securities of such series to receive, from the money, in the currency
required, and Government Obligations deposited with the Trustee pursuant to Section 12.02(a) or
the interest and principal received by the Trustee in respect of such
Government Obligations, payment of the principal of (and premium, if any) and
any installment of principal of (and premium, if any) or interest on such Debt
Securities on the Stated Maturities thereof or upon the Redemption Dates for
Debt Securities required to be redeemed pursuant to any mandatory sinking fund
or analogous provisions relating to Debt Securities of that series or pursuant
to any call for redemption relating to Debt Securities of that series, (y) the
Company’s rights and obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 12.03 and 12.04, 5.02, 5.04, 6.01, 8.06, 8.10, 8.11 and,
to the extent applicable to such series, Article Four, so long as the
principal of (and premium, if any) and interest on the Debt Securities of such
series remain unpaid and, thereafter, only the Company’s rights and obligations
under Sections 5.04, 8.06, 12.03 and 12.04, and (z) the rights, powers,
trusts, duties and immunities of the Trustee with respect to the Debt
Securities of such series) as it relates to such Debt Securities shall no
longer be in effect, and the Trustee, at the expense of the Company, shall,
upon Company Request, execute proper instruments acknowledging the same if:


 


(a)           (1)  all Debt
Securities of such series therefore authenticated and delivered (other than (A) Debt
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.07 and (B) Debt Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Sections 12.03 and 12.04) have been
delivered to the Trustee for cancellation;


 


(2)           the Company has paid
or caused to be paid in the currency required all other sums payable under this
Indenture in respect of the Debt Securities of such series; and


 


(3)           the Company has
delivered to the Trustee an Officers’ Certificate, an Opinion of Counsel and a
written opinion of independent public accountants, each stating that all
conditions precedent herein provided for relating to the satisfaction of the
entire indebtedness of all Debt Securities of any such series and the discharge
of the Indenture as it relates to such Debt Securities have been complied with;
or


 


(b)           (1)  all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, or (B) will become due
and payable at their Stated Maturity within one year, or (C) are to be
called for redemption within one year under 


 


52

















 


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;


 


(2)           the condition
described in paragraph (a) of Section 12.02 has been satisfied; and


 


(3)           the conditions
described in paragraphs (a)(2) and (a)(3) of this Section 12.01
have been satisfied; or


 


(c)           (1) the
conditions referred to in paragraphs (b)(2) and (b)(3) of this Section 12.01
have been satisfied;


 


(2)           no Event of Default
or event which with notice or lapse of time would become an Event of Default
shall have occurred and be continuing on the date of the deposit referred to in
paragraph (a) of Section 12.02 or on the ninety-first day after the
date of such deposit; provided, however, that should that condition fail to be satisfied on
or before such ninety-first day, the Trustee shall promptly, upon satisfactory
receipt of evidence of such failure, return such deposit to the Company;


 


(3)           the Company has
either (A) delivered to the Trustee an opinion of counsel of a
nationally-recognized independent tax counsel to the effect that Holders of the
Debt Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and the satisfaction,
discharge and defeasance contemplated by this paragraph (c) of this Section 12.01
and will be subject to Federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred or (B) the Company shall have received from,
or there shall have been published by, the United States Internal Revenue
Service a ruling to the effect stated in subsection (A) of this Section 12.01(c)(3);
and


 


(4)           the Company has
received an Opinion of Counsel to the effect that the satisfaction, discharge
and defeasance contemplated by this Section 12.01 will not result in the
delisting of the Debt Securities of that series from any nationally-recognized
securities exchange on which they are listed.


 


SECTION 12.02.    Defeasance of Debt
Securities of any Series.  The
provisions of this Indenture (except as to (x) the rights of Holders of
Debt Securities of any series to receive, from the money, in the currency
required, and Government Obligations deposited with the Trustee pursuant to
paragraph (a) below or the interest and principal received by the Trustee
in respect of such Government Obligations, payment of the principal of (and
premium, if any) and any installment of principal of (and premium, if any) or
interest on such Debt Securities on the Stated Maturities thereof or upon the
Redemption Dates for Debt Securities required to be redeemed pursuant to any
mandatory sinking or analogous provisions relating to Debt Securities of that
series or pursuant to any call for redemption relating to Debt Securities of
that series, (y) the Company’s rights and obligations with respect to such
Debt Securities under Sections 3.06, 3.07, 12.03, 12.04, Article Seven
(other than subsection (d) of Section 7.01), Sections 5.01, 5.02,
5.04, 6.01, 8.06, 8.10, 8.11 and, to the extent applicable to such series, Article Four,
so long as the principal of (and premium, if any) and interest on the Debt
Securities of such series remain unpaid and, thereafter, only the Company’s
rights and obligations under Sections 5.04, 8.06, 


 


53

















 


12.03 and 12.04, and (z) the rights, powers,
trusts, duties and immunities of the Trustee with respect to the Debt Securities
of such series) as it relates to Debt Securities of any series shall no longer
be in effect, and the Trustee, at the expense of the Company shall, upon
Company Request, execute proper instruments acknowledging the same if:


 


(a)           the Company has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose (1) money in an amount, or (2) Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide on or before the due date of any
payment in respect of such series of Debt Securities in an amount, or (3) a
combination thereof, sufficient, after payment of all Federal, state and local
taxes in respect thereof payable by the Trustee, 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 (A) the principal
of (and premium, if any) and each installment of principal (and premium, if
any) and interest on the Outstanding Debt Securities of that series on the
Stated Maturity of such principal or installment of principal or interest and (B) any
mandatory sinking fund payments or analogous payments or payments pursuant to
any call for redemption applicable to Debt Securities of such series on the day
on which such payments are due and payable in accordance with the terms of the
Indenture and such Debt Securities;


 


(b)           no Event of Default
or event which with notice or lapse of time would become an Event of Default
shall have occurred and be continuing on the date of such deposit;


 


(c)           the interest of the
Holders in such deposit shall have been duly perfected under the applicable
provisions of the Uniform Commercial Code; and


 


(d)           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
defeasance contemplated by this Section have been complied with.


 


SECTION 12.03.    Application of Trust
Funds; Indemnification.  (a) 
Subject to the provisions of Section 12.04, all money and Government
Obligations deposited with the Trustee pursuant to Section 12.01 or 12.02
and all money received by the Trustee in respect of Government Obligations
deposited with the Trustee, shall be held in trust and applied by it, in
accordance with the provisions of the Debt Securities and this Indenture, to
the payment, either directly or through any paying agent (including the Company
acting as its own paying agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money and Government Obligations have been deposited with or
received by the Trustee as contemplated by Section 12.01 or 12.02.


 


(b)           The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to Section 12.01
or 12.02 or the interest and principal received in respect of such obligations,
other than any such tax, fee or other charge payable by or on behalf of
Holders. The Company shall be entitled to prompt notice of an assessment or the
commencement of any proceeding for which indemnification may be sought
hereunder and, at its election, to contest such assessment or to participate
in, assume the defense of, or settle such proceeding.


 


54

















 


(c)           The Trustee shall
deliver or pay to the Company from time to time upon Company Request any
Government Obligations or money held by it as provided in Section 12.01 or
12.02 which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such obligations or
money were deposited or received.


 


(d)           If the Trustee is
unable to apply any money or Government Obligations in accordance with this Section 12.03
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the Debt
Securities, if any, of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.01 or Section 12.02, as
the case may be, until such time as the Trustee is permitted to apply all such
money or Government Obligations in accordance with this Section 12.03;
provided, however, that if the Company has made any payment of interest on or
principal of (and premium, if any) on any Debt Securities, if any, of such
series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such series of Debt Securities, if
any, to receive such payment from the money or Government Obligations held by
the Trustee.


 


SECTION 12.04.    Return of Unclaimed Moneys.  Any moneys deposited with or paid to the
Trustee or any paying agent for payment of the principal of and premium, if
any, or interest on Debt Securities and not applied but remaining unclaimed by
the Holders of Debt Securities for two years after the date upon which the
principal of and premium, if any, or interest on such Debt Securities, as the
case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee or such paying agent on demand; and the Holder of any of the
Debt Securities entitled to receive such payment shall thereafter look only to
the Company for any payment thereof.


 


SECTION 12.05.    Reinstatement.  If the Trustee is unable to apply any money
or Government Obligations in accordance with Sections 12.01 or 12.02 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Debt
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Sections 12.01 or 12.02 until such time as the Trustee is permitted
to apply all such money or Government Obligations in accordance with Sections
12.01 or 12.02; provided that, if the Company has made any payment of principal
of or interest on the Debt Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Debt Securities to receive such payment from the money or Government
Obligations held by the Trustee.


 


ARTICLE
13.


IMMUNITY
OF INCORPORATORS, STOCKHOLDERS,


OFFICERS
AND DIRECTORS.


 


SECTION 13.01.    Indenture and Debt
Securities Solely Obligations of the Company.  No recourse under or upon any obligation,
covenant or agreement of this Indenture, any 


 


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supplemental indenture, or of any Debt Security, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, organizer, stockholder, member, owner, officer, director,
manager or employee, as such, past, present or future, of the Company or any
Subsidiary or of any predecessor or successor Person, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, any incorporator,
organizer, stockholder, member, owner, officer, director, manager or employee,
as such, of the Company or of any predecessor or successor Person, or any of
them, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture, or in any of the Debt Securities or implied thereby; and that any
and all such personal liability, either at common law or in equity or by
constitution or statute of, and any and all such rights and claims against,
every such incorporator, organizer, stockholder, member, owner, officer,
director, manager or employee, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Debt
Securities or implied thereby, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of such Debt Securities.


 


ARTICLE
14.

MISCELLANEOUS PROVISIONS.


 


SECTION 14.01.    Provisions Binding on
Successors of the Company. 
All of the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.


 


SECTION 14.02.    Indenture for Sole Benefit
of Parties and Holders of Debt Securities.  Nothing in this Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any
Person, firm or corporation, other than the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt
Securities, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being, subject to the
provisions of Articles Eleven and Thirteen, for the sole benefit of the parties
hereto, any agent of the Trustee or the Company under this Indenture and the
Holders of the Debt Securities.


 


SECTION 14.03.    Addresses for Notices,
etc.  Any notice or demand
which by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the Holders of Debt Securities on the Company
may be given or served by being deposited, registered or certified mail postage
prepaid, in a post office letter box in the United States addressed (until
another address is filed by the Company with the Trustee) to the Company, 2400
S. 44th Street, Manitowoc, Wisconsin 54221-0066, Telecopier No.: 920-652-9775,
Attention: Treasurer, with a copy to 2400 S. 44th Street, Manitowoc, Wisconsin
54221-0066, Telecopier No.: 920-652-9777, Attention: General Counsel. Any
notice, direction, request or demand by any Holder of a Debt Security or the
Company to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the Corporate Trust 


 


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Office of the Trustee, addressed to the attention of
its corporate trust department. Any notice, report or other instrument required
by any of the provisions of this Indenture to be given by the Company or the
Trustee to the Holders of Debt Securities of any or all series shall be deemed
to have been sufficiently given, for all purposes, when mailed by first class
mail, or, in the case of a Global Debt Security, electronic transmission.


 


SECTION 14.04.    New York Contract; Waiver
of Jury Trial.  This Indenture
and the Debt Securities shall for all purposes be construed in accordance with
and governed by the laws of the State of New York, without regard to conflicts
of laws principles thereof. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE DEBT SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


SECTION 14.05.    Evidence of Compliance
with Conditions Precedent. 
Upon any Company request to the Trustee to take any action under any of
the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent, if any (including
any covenant, compliance with which constitutes a condition precedent) provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.


 


Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (b) 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; (c) a statement that, in the
opinion of such Person, he or she has made such examination or investigation as
is necessary to enable such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (d) a statement
as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.


 


SECTION 14.06.    Legal Holidays.  In any case where the date of maturity of
interest on or principal of or premium, if any, on any series of Debt Securities
or the date fixed for redemption of any Debt Security or Debt Securities will
be a legal holiday or a day on which banking institutions are legally
authorized or obligated to close in New York or any other location where a
paying agent appointed pursuant to Section 5.02 is located, then payment
of such interest on or principal of and premium, if any, on such Debt
Securities need not be made by such paying agent on such date but may be made
by such paying agent on the next succeeding business day that is not a day in
such location that is either a legal holiday or a day on which banking
institutions are legally authorized or obligated to close, with the same force
and effect as if made on such date of maturity or the date fixed for redemption
and no interest shall accrue for the period from and after such prior date.


 


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SECTION 14.07.    Trust Indenture Act of
1939 to Control.  If any
provision hereof limits, qualifies or conflicts with the duties imposed by any
of Sections 310 through 317 of the Trust Indenture Act of 1939, by the
operation of Section 318(c) thereof, such imposed duties shall
control, except as, and to the extent, expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
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 14.08.    Table of Contents,
Headings, etc.  The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


SECTION 14.09.    Determination of Principal
Amount.  In determining
whether the Holders of the requisite principal amount of Outstanding Debt
Securities of any series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, (a) the principal
amount of an Original Issue Discount Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 7.01,
(b) the principal amount of any Debt Securities denominated in a Foreign
Currency that shall be deemed to be Outstanding for such purposes shall be
determined by the Company by converting the Foreign Currency into Dollars at
the Market Exchange Rate as of the date of such determination and (c) the
principal amount of any Indexed Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal face amount
of such Indexed Debt Security at original issuance, unless otherwise provided
in or pursuant to this Indenture.


 


SECTION 14.10.    Execution in Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be an original and such counterparts shall
together constitute but one and the same instrument. The exchange of copies of
this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all
purposes.  Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes. Wells Fargo Bank, National Association hereby
accepts the trusts in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.


 


SECTION 14.11.    Force Majeure.  In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


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SECTION 14.12.    U.S.A. Patriot Act.  The parties hereto acknowledge that in
accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like
all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or
opens an account with the Trustee.  The
parties to this Indenture agree that they will provide the Trustee with such
information as it may request in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, THE
MANITOWOC COMPANY, INC. has caused this Indenture to be executed by its Senior
Vice President and Chief Financial Officer, and WELLS FARGO BANK, NATIONAL
ASSOCIATION has caused this Indenture to be executed by one of its Officers, as
of the day and year first written above.


 


	
   

  	
  THE MANITOWOC COMPANY,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carl J. Laurino

  
	
   

  	
   

  	
  Name:

  	
  Carl J. Laurino

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK,
  NATIONAL 

  ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lynn M. Steiner

  
	
   

  	
   

  	
  Name:

  	
  Lynn M. Steiner

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


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