exv4w5






Exhibit 4.5




PFSWEB, INC.




SENIOR DEBT SECURITIES



INDENTURE




Dated as of



 




Trustee




 










 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Article 1 DEFINITIONS	 	1
	Section 1.1
	 	Definitions of Terms	 	1
	 
	 	 	 	 
	Article 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES	 	5
	Section 2.1
	 	Designation and Terms of Securities	 	5
	Section 2.2
	 	Form of Securities and Trustee’s Certificate	 	7
	Section 2.3
	 	Denominations ; Provisions for Payment	 	7
	Section 2.4
	 	Execution and Authentications	 	9
	Section 2.5
	 	Registration of Transfer and Exchange	 	9
	Section 2.6
	 	Temporary Securities	 	10
	Section 2.7
	 	Mutilated, Destroyed, Lost or Stolen Securities	 	11
	Section 2.8
	 	Cancellation	 	12
	Section 2.9
	 	Benefits of Indenture	 	12
	Section 2.10
	 	Authenticating Agent	 	12
	Section 2.11
	 	Global Securities	 	13
	 
	 	 	 	 
	Article 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS	 	14
	Section 3.1
	 	Redemption	 	14
	Section 3.2
	 	Notice of Redemption	 	14
	Section 3.3
	 	Payment Upon Redemption	 	15
	Section 3.4
	 	Sinking Fund	 	15
	Section 3.5
	 	Satisfaction of Sinking Fund Payments with Securities	 	16
	Section 3.6
	 	Redemption of Securities for Sinking Fund	 	16
	 
	 	 	 	 
	Article 4 COVENANTS	 	16
	Section 4.1
	 	Payment of Principal, Premium and Interest	 	16
	Section 4.2
	 	Maintenance of Office or Agency	 	17
	Section 4.3
	 	Paying Agents	 	17
	Section 4.4
	 	Appointment to Fill Vacancy in Office of Trustee	 	18
	Section 4.5
	 	Compliance with Consolidation Provisions	 	18
	 
	 	 	 	 
	Article 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE	 	19
	Section 5.1
	 	Company to Furnish Trustee Names and Addresses of Securityholders	 	19
	Section 5.2
	 	Preservation of Information; Communications With Securityholders	 	19
	Section 5.3
	 	Reports by the Company	 	19
	Section 5.4
	 	Reports by the Trustee	 	19
	 
	 	 	 	 
	Article 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT	 	20
	Section 6.1
	 	Events of Default	 	20






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	Section 6.2
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	22
	Section 6.3
	 	Application of Moneys Collected	 	23
	Section 6.4
	 	Limitation on Suits	 	23
	Section 6.5
	 	Rights and Remedies Cumulative; Delay or Omission Not Waiver	 	24
	Section 6.6
	 	Control by Securityholders	 	25
	Section 6.7
	 	Undertaking to Pay Costs	 	25
	 
	 	 	 	 
	Article 7 CONCERNING THE TRUSTEE	 	25
	Section 7.1
	 	Certain Duties and Responsibilities of Trustee	 	25
	Section 7.2
	 	Certain Rights of Trustee	 	27
	Section 7.3
	 	Trustee Not Responsible for Recitals or Issuance or Securities	 	28
	Section 7.4
	 	May Hold Securities	 	28
	Section 7.5
	 	Moneys Held in Trust	 	28
	Section 7.6
	 	Compensation and Reimbursement	 	29
	Section 7.7
	 	Reliance on Officers’ Certificate	 	29
	Section 7.8
	 	Disqualification; Conflicting Interests	 	29
	Section 7.9
	 	Corporate Trustee Required; Eligibility	 	29
	Section 7.10
	 	Resignation and Removal; Appointment of Successor	 	30
	Section 7.11
	 	Acceptance of Appointment by Successor	 	31
	Section 7.12
	 	Merger, Conversion, Consolidation or Succession to Business	 	32
	Section 7.13
	 	Preferential Collection of Claims Against the Company	 	33
	Section 7.14
	 	Notice of Default	 	33
	 
	 	 	 	 
	Article 8 CONCERNING THE SECURITYHOLDERS	 	33
	Section 8.1
	 	Evidence of Action by Securityholders	 	33
	Section 8.2
	 	Proof of Execution by Securityholders	 	34
	Section 8.3
	 	Who May be Deemed Owners	 	34
	Section 8.4
	 	Certain Securities Owned by Company Disregarded	 	34
	Section 8.5
	 	Actions Binding on Future Securityholders	 	35
	 
	 	 	 	 
	Article 9 SUPPLEMENTAL INDENTURES	 	35
	Section 9.1
	 	Supplemental Indentures Without the Consent of Securityholders	 	35
	Section 9.2
	 	Supplemental Indentures With Consent of Securityholders	 	36
	Section 9.3
	 	Effect of Supplemental Indentures	 	37
	Section 9.4
	 	Securities Affected by Supplemental Indentures	 	37
	Section 9.5
	 	Execution of Supplemental Indentures	 	37
	 
	 	 	 	 
	Article 10 SUCCESSOR ENTITY	 	38
	Section 10.1
	 	Company May Consolidate, Etc	 	38
	Section 10.2
	 	Successor Entity Substituted	 	38
	Section 10.3
	 	Evidence of Consolidation, Etc. to Trustee	 	39
	 
	 	 	 	 
	Article 11 SATISFACTION AND DISCHARGE	 	39
	Section 11.1
	 	Satisfaction and Discharge of Indenture	 	39
	Section 11.2
	 	Discharge of Obligations	 	39
	Section 11.3
	 	Deposited Moneys to be Held in Trust	 	40
	Section 11.4
	 	Payment of Moneys Held by Paying Agents	 	40






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	Section 11.5
	 	Repayment to Company	 	40
	 
	 	 	 	 
	Article 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS	 	41
	Section 12.1
	 	No Recourse	 	41
	 
	 	 	 	 
	Article 13 MISCELLANEOUS PROVISIONS	 	41
	Section 13.1
	 	Effect on Successors and Assigns	 	41
	Section 13.2
	 	Actions by Successors	 	41
	Section 13.3
	 	Surrender of Company Powers	 	41
	Section 13.4
	 	Notices	 	42
	Section 13.5
	 	Governing Law	 	42
	Section 13.6
	 	Treatment of Securities as Debt	 	42
	Section 13.7
	 	Certificates and Opinions as to Conditions Precedent	 	42
	Section 13.8
	 	Payments on Business Days	 	42
	Section 13.9
	 	Conflict with Trust Indenture Act	 	43
	Section 13.10
	 	Counterparts	 	43
	Section 13.11
	 	Separability	 	43
	Section 13.12
	 	Compliance Certificates	 	43







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INDENTURE




          INDENTURE, dated as of _______, 20___, between PFSWEB, INC., a Delaware corporation (the
“Company”), and ___________, as trustee (the “Trustee”):



          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of debt securities (hereinafter referred to
as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in
one or more series as in this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;



          WHEREAS, to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and



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



          NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the
holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit
of the holders of Securities:



ARTICLE 1

DEFINITIONS




          Section 1.1     Definitions of Terms.



                    (a)          The terms defined in this Section (except as in this Indenture or any indenture
supplemental hereto 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 and shall include the plural as well as the singular. All other
terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
that are by reference in such Act or as defined in the Securities Act of 1933, as amended (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of the execution of this instrument.



          “Authenticating Agent” means an authenticating agent with respect to all or any of the series
of Securities appointed by the Trustee pursuant to Section 2.10.



          “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief
of debtors.



          “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee of such Board.



 









 





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



          “Business Day” means, with respect to any series of Securities, any day other than a day on
which federal or state banking institutions in the Borough of Manhattan, the City of New York, or
in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law,
executive order or regulation to close.



          “Certificate” means a certificate signed by any Officer. The Certificate need not comply with
the provisions of Section 13.07.



          “Company” means PFSweb, Inc., a corporation duly organized and existing under the laws of the
State of Delaware, and, subject to the provisions of Article Ten, shall also include its successors
and assigns.



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



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



          “Default” means any event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.



          “Depositary” means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under
the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable
statute or regulation, which, in each case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.



          “Event of Default” means, with respect to Securities of a particular series, any event
specified in Section 6.01, continued for the period of time, if any, therein designated.



          “Global Security” means, with respect to any series of Securities, a Security executed by the
Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction,
all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.



          “Governmental Obligations” means securities that are (a) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not callable or redeemable at
the option of the issuer thereof at any time prior to the stated maturity of the Securities, and
shall also include a depositary receipt issued by a bank or trust company as custodian with respect
to



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any such Governmental Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such depositary receipt.




          “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.



          “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.



          “Interest Payment Date”, when used with respect to any installment of interest on a Security
of a particular series, means the date specified in such Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.



          “Officer” means, with respect to the Company, the chairman of the Board of Directors, a chief
executive officer, a president, a chief financial officer, a chief operating officer, any executive
vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.



          “Officers’ Certificate” means a certificate signed by any two Officers. Each such certificate
shall include the statements provided for in Section 13.07, if and to the extent required by the
provisions thereof.



          “Opinion of Counsel” means an opinion in writing subject to customary exceptions of legal
counsel, who may be an employee of or counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.



          “Outstanding”, when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Securities or portions of such Securities are to
be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee shall have been



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made for giving such notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.




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



          “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Security.



          “Responsible Officer” when used with respect to the Trustee means the chairman of its board of
directors, the chief executive officer, the president, any vice president, the secretary, the
treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.



          “Securities” means the debt Securities authenticated and delivered under this Indenture.



          “Securityholder”, “holder of Securities”, “registered holder”, or other similar term, means
the Person or Persons in whose name or names a particular Security shall be registered on the books
of the Company kept for that purpose in accordance with the terms of this Indenture.



          “Security Register” and “Security Registrar” shall have the meanings as set forth in Section
2.05.



          “Subsidiary” means, with respect to any Person, (i) any corporation at least a majority of
whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or by one or more of
its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.



          “Trustee” means, and, subject to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than one Person acting in such capacity
hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to a
particular series of the Securities shall mean the trustee with respect to that series.



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



          “Voting Stock”, as applied to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the equivalent) of such Person,



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other than shares, interests, participations or other equivalents having such power only by
reason of the occurrence of a contingency.




ARTICLE 2

ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE

OF SECURITIES




          Section 2.1     Designation and Terms of Securities.



                    (a)          The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate
principal amount of Securities of that series from time to time authorized by or pursuant to a
Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto:



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



                              (2)          any limit upon the aggregate principal amount of the Securities of that series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that
series);



                              (3)          the date or dates on which the principal of the Securities of the series is payable, any
original issue discount that may apply to the Securities of that series upon their issuance, the
principal amount due at maturity, and the place(s) of payment;



                              (4)          the rate or rates at which the Securities of the series shall bear interest or the manner
of calculation of such rate or rates, if any;



                              (5)          the date or dates from which such interest shall accrue, the Interest Payment Dates on
which such interest will be payable or the manner of determination of such Interest Payment Dates,
the place(s) of payment, and the record date for the determination of holders to whom interest is
payable on any such Interest Payment Dates or the manner of determination of such record dates;



                              (6)          the right, if any, to extend the interest payment periods and the duration of such
extension;



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



                              (8)          the obligation, if any, of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund, mandatory redemption, or analogous provisions (including payments
made in cash in satisfaction of future sinking fund obligations)



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or at the option of a holder thereof and the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;




                              (9)          the form of the Securities of the series including the form of the Certificate of
Authentication for such series;



                              (10)          if other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall be issuable;



                              (11)          any and all other terms (including terms, to the extent applicable, relating to any
auction or remarketing of the Securities of that series and any security for the obligations of the
Company with respect to such Securities) with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including
any terms which may be required by or advisable under United States laws or regulations or
advisable in connection with the marketing of Securities of that series;



                              (12)          whether the Securities are issuable as a Global Security and, in such case, the terms and
the identity of the Depositary for such series;



                              (13)          whether the Securities will be convertible into or exchangeable for shares of common
stock or other securities of the Company or any other Person and, if so, the terms and conditions
upon which such Securities will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or
optional (at the Company’s option or the holders’ option) conversion or exchange features, and the
applicable conversion or exchange period;



                              (14)          if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01;



                              (15)          any additional or different Events of Default or restrictive covenants (which may
include, among other restrictions, restrictions on the Company’s ability or the ability of the
Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create
liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock;
place restrictions on such Subsidiaries placing restrictions on their ability to pay dividends,
make distributions or transfer assets; make investments or other restricted payments; sell or
otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with
stockholders and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation
or merger) or financial covenants (which may include, among other financial covenants, financial
covenants that require the Company and its Subsidiaries to maintain specified interest coverage,
fixed charge, cash flow-based or asset-based ratios) provided for with respect to the Securities of
the series;



                              (16)          if other than dollars, the coin or currency in which the Securities of the series are
denominated (including, but not limited to, foreign currency);



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                              (17)          the terms and conditions, if any, upon which the Company shall pay amounts in addition to
the stated interest, premium, if any and principal amounts of the Securities of the series to any
Securityholder that is not a “United States person” for federal tax purposes; and



                              (18)          any restrictions on transfer, sale or assignment of the Securities of the series.



          All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.



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



          Securities of any particular series may be issued at various times, with different dates on
which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different redemption dates.



          Section 2.2     Form of Securities and Trustee’s Certificate.



          The Securities of any series and the Trustee’s certificate of authentication to be borne by
such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’
Certificate, and they may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange on which Securities of that series may be
listed, or to conform to usage.



          Section 2.3     Denominations ; Provisions for Payment.



          The Securities shall be issuable as registered Securities and in the denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10).
The Securities of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. Subject to Section 2.01(a)(16), the principal of and the
interest on the Securities of any series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or currency of the United States of America
that at the time is legal tender for public and private debt, at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, the City and State of New York.
Each Security shall be dated the date of its authentication. Interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day months.



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          The interest installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. In the event that any
Security of a particular series or portion thereof is called for redemption and the redemption date
is subsequent to a regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.03.



          Any interest on any Security that is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date for Securities of the same series (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 shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:



                    (a)          The Company may make payment of any Defaulted Interest on Securities to the Persons in
whose names such Securities (or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in
the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor Securities) are registered on such
special record date.



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



          Unless otherwise set forth in a Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term
“regular record date” as used in this Section with respect to a series of Securities and any
Interest Payment Date for such series shall mean either the fifteenth day of the month immediately



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preceding the month in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the
first day of the month in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.




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



          Section 2.4     Execution and Authentications.



          The Securities shall be signed on behalf of the Company by one of its Officers. Signatures may
be in the form of a manual or facsimile signature.



          The Company may use the facsimile signature of any Person who shall have been an Officer,
notwithstanding the fact that at the time the Securities shall be authenticated and delivered or
disposed of such Person shall have ceased to be such an officer of the Company. The Securities may
contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each
Security shall be dated the date of its authentication by the Trustee.



          A Security shall not be valid until authenticated manually by an authorized signatory of the
Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder
is entitled to the benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a written order of the Company for
the authentication and delivery of such Securities, signed by an Officer, and the Trustee in
accordance with such written order shall authenticate and deliver such Securities.



          In authenticating such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of this Indenture.



          The Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.



          Section 2.5     Registration of Transfer and Exchange.



                    (a)          Securities of any series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the Borough of Manhattan, the City and State
of New York, for other Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, all as provided in this Section. In respect of any



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Securities so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.




                    (b)          The Company shall keep, or cause to be kept, at its office or agency designated for such
purpose in the Borough of Manhattan, the City and State of New York, or such other location
designated by the Company, a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall register
the Securities and the transfers of Securities as in this Article provided and which at all
reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall be appointed as
authorized by Board Resolution (the “Security Registrar”).



          Upon surrender for transfer of any Security at the office or agency of the Company designated
for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of
the same series as the Security presented for a like aggregate principal amount.



          All Securities presented or surrendered for exchange or registration of transfer, as provided
in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by
a written instrument or instruments of transfer, in form satisfactory to the Company or the
Security Registrar, duly executed by the registered holder or by such holder’s duly authorized
attorney in writing.



                    (c)          Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth
in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, no service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any series, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.



                    (d)          The Company shall not be required (i) to issue, exchange or register the transfer of any
Securities during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for redemption, other than
the unredeemed portion of any such Securities being redeemed in part. The provisions of this
Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.



          Section 2.6     Temporary Securities.



          Pending the preparation of definitive Securities of any series, the Company may execute, and
the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions,



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insertions and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities of such series. Without unnecessary delay the
Company will execute and will furnish definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose in the Borough of
Manhattan, the City and State of New York, and the Trustee shall authenticate and such office or
agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until further notice from the Company.
Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series authenticated and delivered hereunder.




          Section 2.7     Mutilated, Destroyed, Lost or Stolen Securities.



          In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted Security shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted 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 (including the fees and expenses of the Trustee) connected therewith.



          In case any Security that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.



          Every replacement Security issued pursuant to the provisions of this Section shall constitute
an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost
or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities
of the same series duly issued hereunder. All Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the



11









 







replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.



          Section 2.8     Cancellation.



          All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.



          Section 2.9     Benefits of Indenture.



          Nothing in this Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the 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 for
the sole benefit of the parties hereto and of the holders of the Securities.



          Section 2.10     Authenticating Agent.



          So long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall
be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is
otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign immediately.



          Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time (and upon request by the



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Company shall) terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.



          Section 2.11     Global Securities.



                    (a)          If the Company shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary.”



                    (b)          Notwithstanding the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.



                    (c)          If at any time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, or if an Event of Default has occurred and is continuing and the
Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the
Trustee will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such Global Security. In
addition, the Company may at any time determine that the Securities of any series shall no longer
be represented by a Global Security and that the provisions of this Section 2.11 shall no longer
apply to the Securities of such series. In such event the Company will execute and, subject to
Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange



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for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such Securities are so
registered.



ARTICLE 3

REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS




          Section 3.1     Redemption.



          The Company may redeem the Securities of any series issued hereunder on and after the dates
and in accordance with the terms established for such series pursuant to Section 2.01 hereof.



          Section 3.2     Notice of Redemption.



                    (a)          In case the Company shall desire to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series in accordance with any right the Company reserved for
itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to,
give notice of such redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than 30 days and not
more than 90 days before the date fixed for redemption of that series to such holders at their last
addresses as they shall appear upon the Security Register, unless a shorter period is specified in
the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the holder of any Security of any series
designated for redemption in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Securities of such series or any other
series. In the case of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such
restriction.



          Each such notice of redemption shall specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon presentation and
surrender of such Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case. If less than all the Securities of a
series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in
part shall specify the particular Securities to be so redeemed.



          In case any Security is to be redeemed in part only, the notice that relates to such Security
shall state the portion of the principal amount thereof to be redeemed, and shall state that on and



14









 







after the redemption date, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be issued.



                    (b)          If less than all the Securities of a series are to be redeemed, the Company shall give the
Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory to the Trustee) in
advance of the date fixed for redemption as to the aggregate principal amount of Securities of the
series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it
shall deem appropriate and fair in its discretion and that may provide for the selection of a
portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than $1,000, the Securities to
be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the
Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect,
by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying
agent to call all or any part of the Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section, such notice to be in the name of the
Company or its own name as the Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this Section.



          Section 3.3     Payment Upon Redemption.



                    (a)          If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice 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 interest on
such Securities or portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the
notice, said Securities shall be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the applicable record date
pursuant to Section 2.03).



                    (b)          Upon presentation of any Security of such series that is to be redeemed in part only, the
Company shall execute and the Trustee shall authenticate and the office or agency where the
Security is presented shall deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented.



          Section 3.4     Sinking Fund.



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          The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the
retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of such series.



          The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.



          Section 3.5     Satisfaction of Sinking Fund Payments with Securities.



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



          Section 3.6     Redemption of Securities for Sinking Fund.



          Not less than 45 days prior to each sinking fund payment date for any series of Securities
(unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the
basis for such credit and will, together with such Officers’ Certificate, deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 3.02. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.



ARTICLE 4

COVENANTS




          Section 4.1     Payment of Principal, Premium and Interest.



          The Company will duly and punctually pay or cause to be paid the principal of (and premium, if
any) and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities. Payments of principal on



16









 







the Securities may be made at the time provided herein and established with respect to such
Securities by U.S. dollar check drawn on and mailed to the address of the Securityholder entitled
thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a
U.S. dollar account (such wire transfer to be made only to a Securityholder of an aggregate
principal amount of Securities of the applicable series in excess of U.S. $2,000,000 and only if
such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days
prior to the relevant payment date). Payments of interest on the Securities may be made at the time
provided herein and established with respect to such Securities by U.S. dollar check mailed to the
address of the Securityholder entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account (such a wire transfer to be made
only to a Securityholder of an aggregate principal amount of Securities of the applicable series in
excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in
writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant
payment date).



          Section 4.2     Maintenance of Office or Agency.



          So long as any series of the Securities remain Outstanding, the Company agrees to maintain an
office or agency in the Borough of Manhattan, the City and State of New York, with respect to each
such series and at such other location or locations as may be designated as provided in this
Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities of
that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by any officer authorized to sign an
Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such presentations, notices and
demands. The Company initially appoints the Corporate Trust Office of the Trustee located in the
Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.



          Section 4.3     Paying Agents.



                   (a)          the Company shall appoint one or more paying agents for all or any series of the
Securities, other than the Trustee, the Company will cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section:



                                 (1)          that it will hold all sums held by it as such agent for the payment of the principal of
(and premium, if any) or interest on the Securities of that series (whether such sums have been
paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of
the Persons entitled thereto;



17









 





                                  (2)          that it will give the Trustee notice of any failure by the Company (or by any other
obligor of such Securities) to make any payment of the principal of (and premium, if any) or
interest on the Securities of that series when the same shall be due and payable;



                                  (3)          that it will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and



                                  (4)          that it will perform all other duties of paying agent as set forth in this Indenture.



                    (b)          If the Company shall act as its own paying agent with respect to any series of the
Securities, it will on or before each due date of the principal of (and premium, if any) or
interest on Securities of that series, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Securities of that series until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or
any failure (by it or any other obligor on such Securities) to take such action. Whenever the
Company shall have one or more paying agents for any series of Securities, it will, prior to each
due date of the principal of (and premium, if any) or interest on any Securities of that series,
deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to act.



                    (c)          Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums
in trust as provided in this Section is subject to the provisions of Section 11.05, and (ii) the
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the Trustee upon the
same terms and conditions as those upon which such sums were held by the Company or such paying
agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.



          Section 4.4     Appointment to Fill Vacancy in Office of Trustee.



          The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee hereunder.



          Section 4.5     Compliance with Consolidation Provisions.



          The Company will not, while any of the Securities remain Outstanding, consolidate with or
merge into any other Person, in either case where the Company is not the survivor of such
transaction, or sell or convey all or substantially all of its property to any other Person unless
the provisions of Article Ten hereof are complied with.




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ARTICLE 5

SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND

THE TRUSTEE




           Section 5.1     Company to Furnish Trustee Names and Addresses of Securityholders.




          The Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each
regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series of Securities as of such regular
record date, provided that the Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from the most recent list furnished
to the Trustee by the Company and (b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished for any series for which the Trustee
shall be the Security Registrar.




           Section 5.2     Preservation of Information; Communications With Securityholders.




                    (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 Securities contained in the most recent
list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if acting in such
capacity).



                    (b)          The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.



                    (c)          Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall satisfy its
obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of
Section 312(b) of the Trust Indenture Act.



           Section 5.3     Reports by the Company.




          The Company covenants and agrees to provide a copy to the Trustee, after the Company files the
same with the Securities and Exchange Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of the foregoing as the
Securities and Exchange Commission may from time to time by rules and regulations prescribe) that
the Company files with the Securities and Exchange Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the
Trustee any materials for which the Company has sought and received confidential treatment by the
Securities and Exchange Commission.




           Section 5.4     Reports by the Trustee.




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                    (a)          If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60)
days after each May 1, shall transmit by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register, a brief report dated as of such May
1, which complies with Section 313(a) of the Trust Indenture Act.



                    (b)          The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.



                    (c)          A copy of each such report shall, at the time of such transmission to Securityholders, be
filed by the Trustee with the Company, with each securities exchange upon which any Securities are
listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to
notify the Trustee when any Securities become listed on any securities exchange.



ARTICLE 6

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT

OF DEFAULT




           Section 6.1     Events of Default.




                    (a)          Whenever used herein with respect to Securities of a particular series, “Event of Default”
means any one or more of the following events that has occurred and is continuing:



                                   (1)          the Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable, and such default
continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of interest for this purpose;



                                   (2)          the Company defaults in the payment of the principal of (or premium, if any, on) any of
the Securities of that series as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series; provided, however, that a valid
extension of the maturity of such Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of principal or premium, if any;



                                   (3)          the Company fails to observe or perform any other of its covenants or agreements with
respect to that series contained in this Indenture or otherwise established with respect to that
series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has
been expressly included in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days after the date on which written notice
of such failure, requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the
Securities of that series at the time Outstanding;



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                                   (4)          the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit of its creditors; or



                                   (5)          a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for
relief against the Company in an involuntary case, (ii) appoints a Custodian of the Company for all
or substantially all of its property or (iii) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days.



                    (b)          In each and every such case (other than an Event of Default specified in clause (4) or
clause (5) above), unless the principal of all the Securities of that 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 Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by such Securityholders), may declare the principal of
(and premium, if any, on) and accrued and unpaid interest on all the Securities of that series to
be due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above
occurs, the principal of and accrued and unpaid interest on all the Securities of that series shall
automatically be immediately due and payable without any declaration or other act on the part of
the Trustee or the holders of the Securities.



                    (c)          At any time after the principal of (and premium, if any, on) and accrued and unpaid
interest on the Securities of that 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 holders of a majority in aggregate principal amount of the Securities of
that series then Outstanding hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of that series and the principal of (and premium, if any, on) any and all Securities of
that series that shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum expressed in the Securities of
that series to the date of such payment or deposit) and the amount payable to the Trustee under
Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid
interest on Securities of that series that shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.



          No such rescission and annulment shall extend to or shall affect any subsequent default or
impair any right consequent thereon.




                    (d)          In case the Trustee shall have proceeded to enforce any right with respect to Securities
of that series under this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any



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determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company
and the Trustee shall continue as though no such proceedings had been taken.




           Section 6.2     Collection of Indebtedness and Suits for Enforcement by Trustee.




                    (a)          The Company covenants that (i) in case it shall default in the payment of any installment
of interest on any of the Securities of a series, or in any payment required by any sinking or
analogous fund established with respect to that series as and when the same shall have become due
and payable, and such default shall have continued for a period of 90 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of
a series when the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such 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 overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee
under Section 7.06.



                    (b)          If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or 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 other obligor upon the Securities of that series
and collect the moneys adjudged or decreed to be payable in the manner provided by law or equity
out of the property of the Company or other obligor upon the Securities of that series, wherever
situated.



                    (c)          In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under the Indenture at the date
of institution of such proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of 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 Securityholders, to pay to the Trustee any amount due it under
Section 7.06.



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                    (d)          All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Securities of that series, may be enforced by the Trustee without
the possession of any of such Securities, or the production thereof at 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, after
provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.



          In case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect
and enforce the rights 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 at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the 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.




          Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any
such proceeding.




           Section 6.3     Application of Moneys Collected.




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




          FIRST: To the payment of reasonable costs and expenses of collection and of all amounts
payable to the Trustee under Section 7.06;




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




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




           Section 6.4     Limitation on Suits.




          No holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law 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 (i) such holder previously shall have given to the Trustee



23









 






written notice of an Event of Default and of the continuance thereof with respect to the
Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the 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; (iii) such holder or holders shall have offered to
the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities
to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action, suit or proceeding
and (v) during such 90 day period, the holders of a majority in principal amount of the Securities
of that series do not give the Trustee a direction inconsistent with the request.




          Notwithstanding anything contained herein to the contrary or any other provisions of this
Indenture, the right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of such holder and by
accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such 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,
except in the manner herein provided and for the equal, ratable and common benefit of all holders
of Securities of such series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.




           Section 6.5     Rights and Remedies Cumulative; Delay or Omission Not Waiver.




                    (a)          Except as otherwise provided in Section 2.07, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.



                    (b)          No delay or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of 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 6.04, every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Securityholders.



24









 





           Section 6.6     Control by Securityholders.




          The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.04, 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 such series; provided,
however, that such direction shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the
Trustee, determine that the proceeding so directed, subject to the Trustee’s duties under the Trust
Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to
the Securityholders not involved in the proceeding. The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities
of such series waive any past default in the performance of any of the covenants contained herein
or established pursuant to Section 2.01 with respect to such series and its consequences, except a
default in the payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities
otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be
deemed to be cured for all purposes of this Indenture and the Company, the Trustee and the holders
of the Securities of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.




           Section 6.7     Undertaking to Pay Costs.




          All parties to this Indenture agree, and each holder of any Securities by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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 or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security of such series, on or after
the respective due dates expressed in such Security or established pursuant to this Indenture.




ARTICLE 7

CONCERNING THE TRUSTEE




           Section 7.1     Certain Duties and Responsibilities of Trustee.




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                    (a)          The Trustee, prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing of all Events of Default with respect to the Securities of that
series that may have occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In case an Event of
Default with respect to the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that series 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 man would exercise or use under the circumstances in the conduct of his own
affairs.



                    (b)          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)          prior to the occurrence of an Event of Default with respect to the Securities of a series
and after the curing or waiving of all such Events of Default with respect to that series that may
have occurred:



                                                  (A)          the duties and obligations of the Trustee shall with respect to the Securities of such
series be determined solely by the express provisions of this Indenture, and the Trustee shall not
be liable with respect to the Securities of such series except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and



                                                  (B)          in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to
the Securities of such series conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;



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



                                   (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 not less than a majority in
principal amount of the Securities of any series at the time Outstanding 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 that series; and



                                   (4)          None of the provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if there is



26









 




reasonable ground for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk
is not reasonably assured to it.




           Section 7.2     Certain Rights of Trustee.




          Except as otherwise provided in Section 7.01:




                    (a)          The Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or 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 a Board Resolution or an instrument signed in the name of the Company by
any authorized officer of the Company (unless other evidence in respect thereof is specifically
prescribed herein);



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



                    (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, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a series of the Securities (that has not
been cured or waived), to exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs;



                    (e)          The Trustee shall not be liable for any action taken 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, security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in Section 8.04); provided, however,
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 costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every such



27









 




examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand; and




                    (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
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.



          In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1) and 6.01(a)(2) or
(2) any Default or Event of Default of which the Trustee shall have received written notification
in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have
obtained actual knowledge. Delivery of reports, information and documents to the Trustee under
Section 5.03 is for informational purposes only and the information and the Trustee’s receipt of
the foregoing shall not constitute constructive notice of any information contained therein, or
determinable from information contained therein including the Company’s compliance with any of
their covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officers’
Certificate).




           Section 7.3     Trustee Not Responsible for Recitals or Issuance or Securities.




                    (a)          The recitals contained herein and in the Securities shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same.



                    (b)          The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Securities.



                    (c)          The Trustee shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds of such Securities, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this Indenture or established pursuant
to Section 2.01, or for the use or application of any moneys received by any paying agent other
than the Trustee.



           Section 7.4     May Hold Securities.




          The Trustee or any paying agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.




           Section 7.5     Moneys Held in Trust.




          Subject to the provisions of Section 11.05, 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. The Trustee shall
be under no liability for interest on any moneys received by it hereunder except such as it may
agree with the Company to pay thereon.




28









 








           Section 7.6     Compensation and Reimbursement.




                    (a)          The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) as the Company and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all Persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from its negligence or
bad faith and except as the Company and Trustee may from time to time agree in writing. The Company
also covenants to indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of defending itself
against any claim of liability in the premises.



                    (b)          The obligations of the Company under this Section to compensate and indemnify the Trustee
and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of particular Securities.



           Section 7.7     Reliance on Officers’ Certificate.




          Except as otherwise provided in Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.




           Section 7.8     Disqualification; Conflicting Interests.




          If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.




            Section 7.9     Corporate Trustee Required; Eligibility.




          There shall at all times be a Trustee with respect to the Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws of the United




29









 







States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Securities and Exchange Commission,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.




          If such corporation or other 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, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 7.10.




           Section 7.10    Resignation and Removal; Appointment of Successor.




                    (a)          The Trustee or any successor hereafter appointed may at any time resign with respect to
the Securities of one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee with respect to
Securities of 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 shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a successor trustee with
respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



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



                                   (1)          the Trustee shall fail to comply with the provisions of Section 7.08 after written request
therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or



                                   (2)          the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09
and shall fail to resign after written request therefor by the Company or by any such
Securityholder; or



                                   (3)          the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take



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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 all Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months may, on behalf
of that 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. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.




                    (c)          The holders of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding may at any time remove the Trustee with respect to such series by so notifying
the Trustee and the Company and may appoint a successor Trustee for such series with the consent of
the Company.



                    (d)          Any resignation or removal of the Trustee and appointment of a successor trustee with
respect to the Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as provided in Section
7.11.



                    (e)          Any successor trustee appointed pursuant to this Section may be appointed with respect to
the Securities of one or more series or all of such series, and at any time there shall be only one
Trustee with respect to the Securities of any particular series.



           Section 7.11    Acceptance of Appointment by Successor.




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



                    (b)          In case of the appointment hereunder of a successor trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (i)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (ii) 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



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respect to the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) 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, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall
be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon
the execution and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this Indenture, and each such
successor trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor trustee relates; but, on request of the
Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor trustee, to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor trustee relates.




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



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



                    (e)          Upon acceptance of appointment by a successor trustee as provided in this Section, the
Company shall transmit notice of the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.



           Section 7.12    Merger, Conversion, Consolidation or Succession to Business.




          Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the
Trustee, including the administration of the trust created by this Indenture, shall be the
successor of the Trustee hereunder, provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger,




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conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.




           Section 7.13    Preferential Collection of Claims Against the Company.




          The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.




           Section 7.14    Notice of Default.




          If any Default or any Event of Default occurs and is continuing and if such Default or Event
of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act notice of the Default or Event of Default within 45 days after it occurs, unless such Default
or Event of Default has been cured; 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 Security, the Trustee shall be
protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the Securityholders.




ARTICLE 8

CONCERNING THE SECURITYHOLDERS




           Section 8.1     Evidence of Action by Securityholders.




          Whenever in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular 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 majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of
that series in person or by agent or proxy appointed in writing.




          If the Company shall solicit from the Securityholders of any series any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such
a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes
of determining whether Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities
of that series shall be computed as of the record date; provided, however,




33









 







that no such authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.




           Section 8.2     Proof of Execution by Securityholders.




          Subject to the provisions of Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:




                    (a)          The fact and date of the execution by any such Person of any instrument may be proved in
any reasonable manner acceptable to the Trustee.



                    (b)          The ownership of Securities shall be proved by the Security Register of such Securities or
by a certificate of the Security Registrar thereof.



          The Trustee may require such additional proof of any matter referred to in this Section as it
shall deem necessary.




           Section 8.3     Who May be Deemed Owners.




          Prior to the due presentment for registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.




           Section 8.4     Certain Securities Owned by Company Disregarded.




          In determining whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction, consent or waiver under this Indenture, the
Securities of that series that are owned by the Company or any other obligor on the Securities of
that series or by any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such 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




34









 







obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.




           Section 8.5     Actions Binding on Future Securityholders.




          At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the holder of
any Security shall be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto
is made upon such Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.




ARTICLE 9

SUPPLEMENTAL INDENTURES




           Section 9.1     Supplemental Indentures Without the Consent of Securityholders.




          In addition to any supplemental indenture otherwise authorized by this Indenture, the Company
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 as then in
effect), without the consent of the Securityholders, for one or more of the following purposes:




                    (a)          to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;



                    (b)          to comply with Article Ten;



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



                    (d)          to add to the covenants, restrictions, conditions or provisions relating to the Company
for the benefit of the holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions are to be for the benefit of less than all series of
Securities, stating that such covenants, restrictions, conditions or provisions are expressly being
included solely for the benefit of such series), to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an Event of Default, or to surrender any right or power herein conferred upon the Company;



35









 





                    (e)          to add to, delete from, or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as
herein set forth;



                    (f)          to make any change that does not adversely affect the rights of any Securityholder in any
material respect;



                    (g)          to provide for the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to
add to the rights of the holders of any series of Securities;



                    (h)          to evidence and provide for the acceptance of appointment hereunder by a successor
trustee; or



                    (i)          to comply with any requirements of the Securities and Exchange Commission or any successor
in connection with the qualification of this Indenture under the Trust Indenture Act.



          The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.




          Any supplemental indenture authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.




          Section 9.2     Supplemental Indentures With Consent of Securityholders.




          With the consent (evidenced as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each series affected by such
supplemental indenture or indentures at the time Outstanding, 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 as
then in effect) 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 not covered by Section 9.01 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby, (a)
extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable
upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture.




36









 








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




           Section 9.3     Effect of Supplemental Indentures.




          Upon the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders
of Securities of the series affected thereby 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 9.4     Securities Affected by Supplemental Indentures.




          Securities of any series affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided such form meets the
requirements of any securities exchange upon which such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company shall so determine, new Securities of
that series so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the Securities of that series
then Outstanding.




           Section 9.5     Execution of Supplemental Indentures.




          Upon the request of the Company, accompanied by its Board Resolutions authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto 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. The Trustee, subject to the provisions of Section 7.01, may receive an Officers’
Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Officers’ Certificate or Opinion of Counsel need
not be provided in connection with the execution of a supplemental indenture that establishes the
terms of a series of Securities pursuant to Section 2.01 hereof.




          Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to
the Securityholders of all series affected thereby as their names and addresses




37









 







appear upon the Security Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.




ARTICLE 10

SUCCESSOR ENTITY




          Section 10.1    Company May Consolidate, Etc.




          Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in
an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
nothing contained in this Indenture 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, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company or its successor or successors) authorized
to acquire and operate the same; provided, however, (a) the Company hereby covenants and agrees
that, upon any such consolidation or merger (in each case, if the Company is not the survivor of
such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of
the principal of (premium, if any) and interest on all of the Securities of all series in
accordance with the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture with respect to
each series or established with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform
to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to
the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or
into which the Company shall have been merged, or by the entity which shall have acquired such
property and (b) in the event that the Securities of any series then Outstanding are convertible
into or exchangeable for shares of common stock or other securities of the Company, such entity
shall, by such supplemental indenture, make provision so that the Securityholders of Securities of
that series shall thereafter be entitled to receive upon conversion or exchange of such Securities
the number of securities or property to which a holder of the number of shares of common stock or
other securities of the Company deliverable upon conversion or exchange of those Securities would
have been entitled had such conversion or exchange occurred immediately prior to such
consolidation, merger, sale, conveyance, transfer or other disposition.




          Section 10.2    Successor Entity Substituted.




                    (a)          In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor entity by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section
10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to
and be substituted for the Company with the same effect as if it had been named as the Company
herein, and thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.



38









 





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



                    (c)          Nothing contained in this Article shall require any action by the Company in the case of a
consolidation or merger of any Person into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the Company).



          Section 10.3    Evidence of Consolidation, Etc. to Trustee.




          The Trustee, subject to the provisions of Section 7.01, may receive an Officers’ Certificate
or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with the provisions of
this Article.




ARTICLE 11

SATISFACTION AND DISCHARGE




          Section 11.1    Satisfaction and Discharge of Indenture.




          If at any time: (a) the Company shall have delivered to the Trustee for cancellation all
Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held in trust by the Company
and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations
or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay at
maturity or upon redemption all Securities of that series not theretofore delivered to the Trustee
for cancellation, including principal (and premium, if any) and interest due or to become due to
such date of maturity or date fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with respect to such
series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that
shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06
and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the
Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.




          Section 11.2    Discharge of Obligations.




39









 








          If at any time all such Securities of a particular series not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption
all such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee the obligations of the Company under this Indenture with respect to such series shall cease
to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03,
7.06, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.




          Thereafter, Sections 7.06 and 11.05 shall survive.




          Section 11.3    Deposited Moneys to be Held in Trust.




          All moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01
or 11.02 shall be held in trust and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.




          Section 11.4    Payment of Moneys Held by Paying Agents.




          In connection with the satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be paid to the Trustee and thereupon such paying agent hall be released from all
further liability with respect to such moneys or Governmental Obligations.




          Section 11.5    Repayment to Company.




          Any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then
held by the Company, in trust for payment of principal of or premium, if any, or interest on the
Securities of a particular series that are not applied but remain unclaimed by the holders of such
Securities for at least two years after the date upon which the principal of (and premium, if any)
or interest on such Securities shall have respectively become due and payable, or such other
shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general
creditor, look only to the Company for the payment thereof.





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ARTICLE 12

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS

AND DIRECTORS




          Section 12.1   No Recourse.




          No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as such, of the Company or
of any predecessor or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or
successor corporation, 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 Securities or implied therefrom; and that any and all such personal
liability of every name and nature, 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, stockholder,
officer or director 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 Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such
Securities.




ARTICLE 13

MISCELLANEOUS PROVISIONS




          Section 13.1   Effect on Successors and Assigns.




          All the covenants, stipulations, promises and agreements in this Indenture made by or on
behalf of the Company shall bind its successors and assigns, whether so expressed or not.




          Section 13.2   Actions by Successors.




          Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any corporation that
shall at the time be the lawful successor of the Company.




          Section 13.3   Surrender of Company Powers.




          The Company by instrument in writing executed by authority of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any successor
corporation.




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          Section 13.4   Notices.




          Except as otherwise expressly provided herein, any notice, request or demand that by any
provision of this Indenture is required or permitted to be given, made or served by the Trustee or
by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company
may be given or served by being deposited in first class mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the Trustee), as follows: PFSweb, Inc., 500
North Central Expressway, Plano, TX, Att: Chief Financial Officer. Any notice, election, request or
demand by the Company or any Securityholder or by any other Person pursuant to this Indenture 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 Office of the Trustee.




          Section 13.5   Governing Law.




          This Indenture and each Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State, except to the extent that the Trust Indenture Act is applicable.




          Section 13.6   Treatment of Securities as Debt.




          It is intended that the Securities will be treated as indebtedness and not as equity for
federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.




          Section 13.7   Certificates and Opinions as to Conditions Precedent.




                    (a)         Upon any application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture (other than the
certificate to be delivered pursuant to Section 13.12) 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 documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no additional certificate or
opinion need be furnished.



                    (b)         Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this Indenture shall include (i) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion are based; (iii) a statement
that, in the opinion of such Person, he has made such examination or investigation as is reasonably
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.\



          Section 13.8   Payments on Business Days.




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          Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in
an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
in any case where the date of maturity of interest or principal of any Security or the date of
redemption of any Security shall not be a Business Day, then payment of interest or principal (and
premium, if any) may be made on the next succeeding Business Day with the same force and effect as
if made on the nominal date of maturity or redemption, and no interest shall accrue for the period
after such nominal date.




          Section 13.9   Conflict with Trust Indenture Act.




          If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.




          Section 13.10  Counterparts.




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




          Section 13.11  Separability.




          In case any one or more of the provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein or therein.




          Section 13.12  Compliance Certificates.




          The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year
during which any Securities of any series were outstanding, an officer’s certificate stating
whether or not the signers know of any Default or Event of Default that occurred during such fiscal
year. Such certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and
that the Company has complied with all conditions and covenants under this Indenture. For purposes
of this Section 13.12, such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If the officer of the Company signing such
certificate has knowledge of such a Default or Event of Default, the certificate shall describe any
such Default or Event of Default and its status.




[SIGNATURE PAGE FOLLOWS]




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




	 	 	 	 	 
	 	PFSWEB, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[TRUSTEE], as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO SENIOR DEBT SECURITIES]




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CROSS-REFERENCE TABLE (1)




	 	 	 
	Section of Trust Indenture	 	Section of Indenture
	Act of 1939, as Amended	 	 
	310(a)
	 	7.09
	310(b)
	 	7.08
	 
	 	7.10
	310(c)
	 	Inapplicable
	311(a)
	 	7.13
	311(b)
	 	7.13
	311(c)
	 	Inapplicable
	312(a)
	 	5.01
	 
	 	5.02(a)
	312(b)
	 	5.02(c)
	312(c)
	 	5.02(c)
	313(a)
	 	5.04(a)
	313(b)
	 	5.04(b)
	313(c)
	 	5.04(a)
	 
	 	5.04(b)
	313(d)
	 	5.04(c)
	314(a)
	 	5.03
	 
	 	13.12
	314(b)
	 	Inapplicable
	314(c)
	 	13.07(a)
	314(d)
	 	Inapplicable
	314(e)
	 	13.07(b)
	314(f)
	 	Inapplicable
	315(a)
	 	7.01(a)
	 
	 	7.01(b)
	315(b)
	 	7.14
	315(c)
	 	7.01
	315(d)
	 	7.01(b)
	315(e)
	 	6.07
	316(a)
	 	6.06
	 
	 	8.04
	316(b)
	 	6.04
	316(c)
	 	8.01
	317(a)
	 	6.02
	317(b)
	 	4.03
	318(a)
	 	13.09








 




(1)     This Cross-Reference Table does not constitute part of the Indenture and shall not have any
bearing on the interpretation of any of its terms or provisions.




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