Exhibit 4.11


 




 





KKR FINANCIAL HOLDINGS LLC,


Issuer


 


to


 


·,


Trustee


 


	
   

  	
   

  	
   

  
	
   

  	
  INDENTURE

  	
   

  
	
   

  	
   

  	
   

  



 


Dated as of ·


 


Debt Securities




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE
  ONE

  
	
   

  
	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  
	
   

  
	
  Section 101.

  	
  Definitions

  	
  2

  
	
  Section 102.

  	
  Compliance Certificates
  and Opinions

  	
  11

  
	
  Section 103.

  	
  Form of Documents
  Delivered to Trustee

  	
  11

  
	
  Section 104.

  	
  Acts of Holders

  	
  12

  
	
  Section 105.

  	
  Notices, etc., to
  Trustee and Company

  	
  13

  
	
  Section 106.

  	
  Notice to Holders of
  Securities; Waiver

  	
  14

  
	
  Section 107.

  	
  Language of Notices

  	
  15

  
	
  Section 108.

  	
  Conflict with Trust
  Indenture Act

  	
  15

  
	
  Section 109.

  	
  Effect of Headings and
  Table of Contents

  	
  15

  
	
  Section 110.

  	
  Successors and Assigns

  	
  15

  
	
  Section 111.

  	
  Separability Clause

  	
  15

  
	
  Section 112.

  	
  Benefits of Indenture

  	
  16

  
	
  Section 113.

  	
  Governing Law

  	
  16

  
	
  Section 114.

  	
  Legal Holidays

  	
  16

  
	
  Section 115.

  	
  Counterparts

  	
  16

  
	
  Section 116.

  	
  Judgment Currency

  	
  16

  
	
  Section 117.

  	
  Extension of Payment
  Dates

  	
  17

  
	
  Section 118.

  	
  Immunity of
  Shareholders, Directors, Officers and Agents of the Company

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  TWO

  
	
   

  
	
  SECURITIES
  FORMS

  
	
   

  
	
  Section 201.

  	
  Forms Generally

  	
  18

  
	
  Section 202.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  18

  
	
  Section 203.

  	
  Securities in Global
  Form

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  THREE

  
	
   

  
	
  THE
  SECURITIES

  
	
   

  
	
  Section 301.

  	
  Amount Unlimited;
  Issuable in Series

  	
  20

  
	
  Section 302.

  	
  Currency; Denominations

  	
  24

  
	
  Section 303.

  	
  Execution,
  Authentication, Delivery and Dating

  	
  24

  
	
  Section 304.

  	
  Temporary Securities

  	
  26

  



 


ii

















 


	
  Section 305.

  	
  Registration, Transfer
  and Exchange

  	
  27

  
	
  Section 306.

  	
  Mutilated, Destroyed,
  Lost and Stolen Securities

  	
  30

  
	
  Section 307.

  	
  Payment of Interest and
  Certain Additional Amounts; Rights to Interest and Certain Additional
  Amounts Preserved

  	
  31

  
	
  Section 308.

  	
  Persons Deemed Owners

  	
  33

  
	
  Section 309.

  	
  Cancellation

  	
  34

  
	
  Section 310.

  	
  Computation of Interest

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  FOUR

  
	
   

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  Section 401.

  	
  Satisfaction and
  Discharge

  	
  34

  
	
  Section 402.

  	
  Defeasance and Covenant
  Defeasance

  	
  36

  
	
  Section 403.

  	
  Application of Trust
  Money

  	
  41

  
	
  Section 404.

  	
  Reinstatement

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  FIVE

  
	
   

  
	
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 501.

  	
  Events of Default

  	
  42

  
	
  Section 502.

  	
  Acceleration of
  Maturity; Rescission and Annulment

  	
  44

  
	
  Section 503.

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
  45

  
	
  Section 504.

  	
  Trustee May File
  Proofs of Claim

  	
  46

  
	
  Section 505.

  	
  Trustee
  May Enforce Claims without Possession of Securities or Coupons

  	
  47

  
	
  Section 506.

  	
  Application of Money
  Collected

  	
  47

  
	
  Section 507.

  	
  Limitations on Suits

  	
  48

  
	
  Section 508.

  	
  Unconditional Right of
  Holders to Receive Principal and any Premium, Interest and Additional Amounts

  	
  48

  
	
  Section 509.

  	
  Restoration of Rights
  and Remedies

  	
  49

  
	
  Section 510.

  	
  Rights and Remedies
  Cumulative

  	
  49

  
	
  Section 511.

  	
  Delay or Omission Not
  Waiver

  	
  49

  
	
  Section 512.

  	
  Control by Holders of
  Securities

  	
  49

  
	
  Section 513.

  	
  Waiver of Past Defaults

  	
  50

  
	
  Section 514.

  	
  Waiver of Usury, Stay
  or Extension Laws

  	
  50

  
	
  Section 515.

  	
  Undertaking for Costs

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  SIX

  
	
   

  
	
  THE
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 601.

  	
  Certain Rights of
  Trustee

  	
  51

  



 


iii

















 


	
  Section 602.

  	
  Notice of Defaults

  	
  52

  
	
  Section 603.

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
  52

  
	
  Section 604.

  	
  May Hold
  Securities

  	
  53

  
	
  Section 605.

  	
  Money Held in Trust

  	
  53

  
	
  Section 606.

  	
  Compensation and
  Reimbursement

  	
  53

  
	
  Section 607.

  	
  Corporate Trustee
  Required; Eligibility

  	
  54

  
	
  Section 608.

  	
  Resignation and
  Removal; Appointment of Successor

  	
  54

  
	
  Section 609.

  	
  Acceptance of
  Appointment by Successor

  	
  56

  
	
  Section 610.

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  57

  
	
  Section 611.

  	
  Appointment of
  Authenticating Agent

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  SEVEN

  
	
   

  
	
  HOLDERS
  LISTS AND REPORTS BY TRUSTEE AND COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 701.

  	
  Company to Furnish
  Trustee Names and Addresses of Holders

  	
  59

  
	
  Section 702.

  	
  Preservation of
  Information; Communications to Holders

  	
  60

  
	
  Section 703.

  	
  Reports by Trustee

  	
  60

  
	
  Section 704.

  	
  Reports by Company

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  EIGHT

  
	
   

  
	
  CONSOLIDATION,
  MERGER AND SALES

  
	
   

  	
   

  	
   

  
	
  Section 801.

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  61

  
	
  Section 802.

  	
  Successor Person
  Substituted for Company

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  NINE

  
	
   

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 901.

  	
  Supplemental Indentures
  without Consent of Holders

  	
  62

  
	
  Section 902.

  	
  Supplemental Indentures
  with Consent of Holders

  	
  64

  
	
  Section 903.

  	
  Execution of Supplemental
  Indentures

  	
  65

  
	
  Section 904.

  	
  Effect of Supplemental
  Indentures

  	
  66

  
	
  Section 905.

  	
  Reference in Securities
  to Supplemental Indentures

  	
  66

  
	
  Section 906.

  	
  Conformity with Trust
  Indenture Act

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  TEN

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 1001.

  	
  Payment of Principal,
  Premium, Interest and Additional Amounts

  	
  66

  
	
  Section 1002.

  	
  Maintenance of Office
  or Agency

  	
  66

  



 


iv

















 


	
  Section 1003.

  	
  Money for Securities
  Payments to Be Held in Trust

  	
  68

  
	
  Section 1004.

  	
  Additional Amounts

  	
  69

  
	
  Section 1005.

  	
  Legal Existence

  	
  69

  
	
  Section 1006.

  	
  Waiver of Certain
  Covenants

  	
  70

  
	
  Section 1007.

  	
  Company Statement as to
  Compliance

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  ELEVEN

  
	
   

  
	
  REDEMPTION
  OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 1101.

  	
  Applicability of
  Article

  	
  70

  
	
  Section 1102.

  	
  Election to Redeem;
  Notice to Trustee

  	
  70

  
	
  Section 1103.

  	
  Selection by Trustee of
  Securities to be Redeemed

  	
  71

  
	
  Section 1104.

  	
  Notice of Redemption

  	
  71

  
	
  Section 1105.

  	
  Deposit of Redemption
  Price

  	
  73

  
	
  Section 1106.

  	
  Securities Payable on
  Redemption Date

  	
  73

  
	
  Section 1107.

  	
  Securities Redeemed in
  Part

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  TWELVE

  
	
   

  
	
  SINKING
  FUNDS

  
	
   

  	
   

  	
   

  
	
  Section 1201.

  	
  Applicability of
  Article

  	
  75

  
	
  Section 1202.

  	
  Satisfaction of Sinking
  Fund Payments with Securities

  	
  75

  
	
  Section 1203.

  	
  Redemption of
  Securities for Sinking Fund

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  THIRTEEN

  
	
   

  
	
  REPAYMENT
  AT THE OPTION OF HOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 1301.

  	
  Applicability of
  Article

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  FOURTEEN

  
	
   

  
	
  SECURITIES
  IN FOREIGN CURRENCIES

  
	
   

  	
   

  	
   

  
	
  Section 1401.

  	
  Applicability of
  Article

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  FIFTEEN

  
	
   

  
	
  MEETINGS
  OF HOLDERS OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 1501.

  	
  Purposes for Which
  Meetings May Be Called

  	
  77

  



 


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  Section 1502.

  	
  Call, Notice and Place
  of Meetings

  	
  77

  
	
  Section 1503.

  	
  Persons Entitled to
  Vote at Meetings

  	
  78

  
	
  Section 1504.

  	
  Quorum; Action

  	
  78

  
	
  Section 1505.

  	
  Determination of Voting
  Rights; Conduct and Adjournment of Meetings

  	
  79

  
	
  Section 1506.

  	
  Counting Votes and
  Recording Action of Meetings

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  SIXTEEN

  
	
   

  
	
  SECURITY

  
	
   

  	
   

  	
   

  
	
  Section 1601.

  	
  Security

  	
  80

  



 


vi

















 


INDENTURE, dated as of ·,
200· (the “Indenture”), between KKR Financial
Holdings LLC, a limited liability company duly organized and existing under the
laws of the State of Delaware (hereinafter called the “Company”), having its
principal executive office located at 555 California Street, San
Francisco, California 94104 and ·, a banking
association duly organized and existing under the laws of ·
(hereinafter called the “Trustee”).


 


RECITALS


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of senior  unsecured and
secured debentures, notes or other evidences of indebtedness (hereinafter
called the “Securities”), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.


 


The Company has duly
authorized the execution and delivery of this Indenture. All things necessary
to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done.


 


This Indenture is subject
to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
that are required to be part of this Indenture and, to the extent applicable,
shall be governed by such provisions.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


1

















 


ARTICLE ONE


 


DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 101.                                Definitions.


 


Except as otherwise
expressly provided in or pursuant to this Indenture or unless the context
otherwise requires, for all purposes of this Indenture:


 


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


 


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


 


(3)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;


 


(4)           the
words “herein”, “hereof”, “hereto” 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;


 


(5)           the
word “or” is always used inclusively (for example, the phrase “A or B” means “A
or B or both”, not “either A or B but not both”);


 


(6)           provisions
apply to successive events and transactions;


 


(7)           the
term “merger” includes a statutory share exchange and the terms “merge” and
“merged” have correlative meanings;


 


(8)           the
masculine gender includes the feminine and the neuter; and


 


(9)           references
to agreements and other instruments include subsequent amendments and
supplements thereto.


 


Certain terms used
principally in certain Articles hereof are defined in those Articles.


 


Except as otherwise
expressly provided in or pursuant to this Indenture or the context otherwise
requires, for all purposes of this Indenture, references to the conversion or
exchange of any Securities for or into other securities (other than Securities
of the same series) or property shall not include the exchange of Securities of
any series for other Securities of the same series.


 


“Act”, when used with
respect to any Holders, has the meaning specified in Section 104.


 


“Additional Amounts”
means any additional amounts which are required by this Indenture or by any
Security, or by the terms of any Security established pursuant to Section 301,
under circumstances specified herein or therein, to be paid by the Company in
respect of certain


 


2

















 


taxes, duties, levies, imposts, assessments or other
governmental charges imposed on Holders specified herein or therein.


 


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


 


“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 611 to act
on behalf of the Trustee to authenticate Securities of one or more series.


 


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


 


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


 


“Bearer Security” means
any Security in the form established pursuant to Section 201 which is
payable to bearer.


 


“Board of Directors”
means the board of directors of the Company or any committee of that board duly
authorized to act generally or in any particular respect for the Company
hereunder. The term “board of directors” means the board of directors of the
Company and does not include committees of the board of directors.


 


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


 


“Business Day” means,
unless otherwise specified with respect to the Securities of any series
pursuant to Section 301, any day other than a Saturday, Sunday or other
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to close; provided that such
term shall mean, when used with respect to any payment of principal of, or
premium or interest, if any, on, or Additional Amounts with respect to, the
Securities of any series to be made at any Place of Payment for such
Securities, unless otherwise specified pursuant to Section 301 with
respect to such Securities, any day other than a Saturday, Sunday or other day
on which banking institutions in such Place of Payment are authorized or
obligated by law, regulation or executive order to close.


 


3

















 


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


 


“Common Shares” means the
common shares of the Company as such common shares exist on the date of this
Indenture or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of
dividends or similar distributions or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company; provided
that, solely in the case of any Securities that are convertible into Common
Shares, unless otherwise provided pursuant to Section 301 with respect to
the Securities of such series, if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
of such Securities shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.


 


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


 


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


 


“Conversion Event” means (i) with
respect to any Foreign Currency other than the Euro, the cessation of use of
such Foreign Currency both by the government of the country or the
confederation which issued such Foreign Currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community or (ii) in the case of the Euro, the
cessation of use of the Euro both within the European Monetary System and for
the settlement of transactions by public institutions of or within the European
Union.


 


“Corporate Trust Office”
means the principal corporate trust office of the Trustee at which at any
particular time its corporate trust business shall be administered, which
office at the date of this Indenture is located at ·,
Attention: ·.


 


The term “Corporation”
includes corporations, partnerships, associations, limited liability companies
and other companies, and business trusts. The term “corporation” means a
corporation and does not include partnerships, associations, limited liability
companies or other companies or business trusts.


 


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


 


4














 


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


 


“CUSIP number” means the
alphanumeric designation assigned to a Security by Standard & Poor’s,
CUSIP Service Bureau.


 


“Defaulted Interest” has
the meaning specified in Section 307.


 


“Depository” means, with
respect to any Security issuable or issued in the form of one or more global
Securities, the Person designated as depository by the Company in or pursuant
to this Indenture, and, unless otherwise provided with respect to any Security,
any successor to such Person. If at any time there is more than one such
Person, “Depository” shall mean, with respect to any Securities, the depository
which has been appointed with respect to such Securities.


 


“Dollars” or “$” means a
dollar or other equivalent unit of legal tender for payment of public or
private debts in the United States of America.


 


“Euro” means the currency
introduced at the start of the third stage of European economic and monetary
union pursuant to the Treaty establishing European Community, as amended by the
Treaty on European Union.


 


“European Monetary
System” means the European Monetary System established by the Resolution of December 5,
1978 of the Council of the European Community.


 


“European Union” means
the participating member states that adopt a single currency in accordance with
the Treaty establishing the European Community, as amended by the Treaty on
European Union.


 


“Event of Default” has
the meaning specified in Section 501.


 


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


 


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


 


“GAAP” and “generally
accepted accounting principles” mean, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, such accounting
principles as are generally accepted in the United States of America as of the
date or time of any computation required hereunder.


 


“Government Obligations”
means securities which are (i) direct obligations of the United States of
America or the other government or governments in the confederation which
issued the


 


5

















 


Foreign Currency in which the principal of or any
premium or interest on the relevant Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America or
such other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.


 


“Holder”, in the case of
any Registered Security, means the Person in whose name such Security is
registered in the Security Register and, in the case of any Bearer Security,
means the bearer thereof and, in the case of any Coupon, means the bearer
thereof.


 


“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms
and provisions may be amended pursuant to the applicable provisions hereof),
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, “Indenture” shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and shall include the terms of those
particular series of Securities for which such Person is Trustee established
pursuant to Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted.


 


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


 


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


 


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


 


“Judgment Currency” has
the meaning specified in Section 116.


 


6

















 


“Maturity”, with respect
to any Security, means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in or pursuant to
this Indenture or such Security, whether at the Stated Maturity or by
declaration of acceleration, upon redemption at the option of the Company, upon
repurchase or repayment at the option of the Holder or otherwise, and includes
a Redemption Date for such Security and a date fixed for the repurchase or
repayment of such Security at the option of the Holder.


 


“New York Banking Day”
has the meaning specified in Section 116.


 


“Non-recourse Debt” means
any indebtedness the terms of which provide that the claim for repayment of
such indebtedness by the holder thereof is limited solely to a claim against
the property or assets (including, without limitation, securities or interests
in securities) that secure such indebtedness; provided, however, that any
obligations or liabilities of the debtor or obligor or any other person solely
for indemnities, covenants or breaches of warranties, representations or
covenants or similar matters in respect of any indebtedness will not prevent
such indebtedness from constituting Non-recourse Debt.


 


“Office” or “Agency”,
with respect to any Securities, means an office or agency of the Company
maintained or designated in a Place of Payment for such Securities pursuant to Section 1002
or any other office or agency of the Company maintained or designated for such
Securities pursuant to Section 1002 or, to the extent designated or
required by Section 1002 in lieu of such office or agency, the Corporate
Trust Office of the Trustee.


 


“Officers’ Certificate”
means a certificate signed by the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, that complies with the requirements of Section 314(e) of
the Trust Indenture Act and is delivered to the Trustee.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be an employee of or counsel for
the Company or other counsel who shall be reasonably acceptable to the Trustee,
that, if required by the Trust Indenture Act, complies with the requirements of
Section 314(e) of the Trust Indenture Act.


 


“Original Issue Discount
Security” means a Security issued pursuant to this Indenture which provides for
an amount less than the principal face amount thereof to be due and payable
upon declaration of acceleration pursuant to Section 502.


 


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


 


(a)                                  any
such Security theretofore cancelled by the Trustee or the Security Registrar or
delivered to the Trustee or the Security Registrar for cancellation;


 


(b)                                 any
such Security for whose payment at the Maturity thereof money in the necessary
amount (or, to the extent that such Security is payable at such Maturity in
Common Shares or other securities or property, Common


 


7

















 


Shares or such other securities or property in the
necessary amount, together with, if applicable, cash in lieu of fractional
shares or securities) has been theretofore deposited pursuant hereto (other
than pursuant to Section 402) with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and any Coupons appertaining thereto, provided
that, if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;


 


(c)                                  any
such Security with respect to which the Company has effected defeasance or
covenant defeasance pursuant to Section 402, except to the extent provided
in Section 402;


 


(d)                                 any
such Security which has been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, unless there shall have been presented to the
Trustee proof satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation of the Company;
and


 


(e)                                  any
such Security converted or exchanged as contemplated by this Indenture into Common
Shares or other securities or property, if the terms of such Security provide
for such conversion or exchange pursuant to Section 301;


 


provided, however,
that in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of
Holders of Securities for quorum purposes, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the
terms of such Original Issue Discount Security would be declared (or shall have
been declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) the
principal amount of a Security denominated in a Foreign Currency that may be
counted in making such determination and that shall be deemed Outstanding for
such purposes shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i) above)
of such Security, and (iv) Securities owned by the Company or any other
obligor upon the Securities, or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request,


 


8

















 


demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A) the
pledgee’s right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate (other than a Trust) of the
Company or such other obligor.


 


“Paying Agent” means any
Person authorized by the Company to pay the principal of, or any premium or
interest on, or any Additional Amounts with respect to, any Security or any
Coupon on behalf of the Company.


 


“Person” and “person”
mean any individual, Corporation, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.


 


“Place of Payment”, with
respect to any Security, means the place or places where the principal of, or
any premium or interest on, or any Additional Amounts with respect to such
Security are payable as provided in or pursuant to this Indenture or such
Security.


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same indebtedness as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a lost, destroyed,
mutilated or stolen Security or any Security to which a mutilated, destroyed,
lost or stolen Coupon appertains shall be deemed to evidence the same
indebtedness as the lost, destroyed, mutilated or stolen Security or the
Security to which a mutilated, destroyed, lost or stolen Coupon appertains.


 


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


 


“Redemption Price”, with
respect to any Security or portion thereof to be redeemed, means the price at
which it is to be redeemed as determined by or pursuant to this Indenture or
such Security.


 


“Registered Security”
means any Security established pursuant to Section 201 which is registered
in the Security Register.


 


“Regular Record Date” for
the interest payable on any Registered Security on any Interest Payment Date
therefor means the date, if any, specified in or pursuant to this Indenture or
such Security as the record date for the payment of such interest.


 


“Required Currency” has
the meaning specified in Section 116.


 


“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office and also means,
with respect to a particular corporate trust matter, any other officer or
employee of the Trustee to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.


 


9

















 


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


 


“Security” or
“Securities” means any note or notes, bond or bonds, debenture or debentures,
or any other evidences of indebtedness, as the case may be, authenticated and
delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities”, with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.


 


“Security Register” and
“Security Registrar” have the respective meanings specified in Section 305.


 


“Significant Subsidiary”
means, as of any date of determination, a Subsidiary of the Company that would
constitute a “significant subsidiary,” as such term is defined under Rule 1-02(w) of
Regulation S-X of the Commission as in effect on the date of this Indenture.


 


“Special Record Date” for
the payment of any Defaulted Interest on any Registered Security means a date
fixed by the Trustee pursuant to Section 307.


 


“Stated Maturity”, with
respect to any Security or any installment of principal thereof or interest
thereon or any Additional Amounts with respect thereto, means the date
established by or pursuant to this Indenture or such Security as the fixed date
on which the principal of such Security or such installment of principal or
interest is, or such Additional Amounts are, due and payable.


 


“Subsidiary” means, with
respect to any Person, (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of capital
stock or other equity interests entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, and any reference herein to
the Trust Indenture Act or a particular provision thereof shall mean such Act
or provision, as the case may be, as amended or replaced from time to time or
as supplemented from time to time by rules or regulations adopted by the
Commission under or in furtherance of the purposes of such Act or provision, as
the case may be.


 


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


 


10

















 


“United States”, means
the United States of America (including the states thereof and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and the term “United States of America” means the United States
of America.


 


“United States Alien”,
except as otherwise provided in or pursuant to this Indenture or any Security,
means any Person who, for United States Federal income tax purposes, is a
foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.


 


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


 


Section 102.                                Compliance
Certificates and Opinions.


 


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


 


Section 103.                                Form of
Documents Delivered to Trustee.


 


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


 


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


 


11

















 


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


 


Section 104.                                Acts of
Holders.


 


(1)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by or pursuant to
this Indenture to be made, given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If, but only
if, Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be made, given or taken by Holders
of Securities of such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such instruments
and any such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 315
of the Trust Indenture Act) conclusive in favor of the Trustee and the Company
and any agent of the Trustee or the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.


 


Without limiting the
generality of this Section 104, unless otherwise provided in or pursuant
to this Indenture, a Holder, including a Depository that is a Holder of a
global Security, may make, give or take, by a proxy or proxies, duly appointed
in writing, any request, demand, authorization, direction, notice, consent,
waiver or other Act provided in or pursuant to this Indenture or the Securities
to be made, given or taken by Holders, and a Depository that is a Holder of a
global Security may provide its proxy or proxies to the beneficial owners of
interests in any such global Security through such Depository’s standing
instructions and customary practices.


 


(2)           The fact and date of the execution by
any Person of any such instrument or writing may be proved in any reasonable
manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may in any
instance require further proof with respect to any of the matters referred to
in this Section.


 


(3)           The ownership, principal amount and
serial numbers of Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall be
proved by the Security Register.


 


12

















 


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


 


(5)           If the Company shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may at its option
(but is not obligated to), by Board Resolution fix in advance a record date for
the determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at
the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
of Registered Securities 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.


 


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


 


Section 105.                                Notices,
etc., to Trustee and Company.


 


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


 


13

















 


(1)           the
Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, or


 


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


 


Section 106.                                Notice to
Holders of Securities; Waiver.


 


Except as otherwise
expressly provided in or pursuant to this Indenture, where this Indenture
provides for notice to Holders of Securities of any event,


 


(1)           such
notice shall be sufficiently given to Holders of Registered Securities if in
writing and mailed, first-class postage prepaid, to each Holder of a Registered
Security affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice; and


 


(2)           such
notice shall be sufficiently given to Holders of Bearer Securities, if any, if
published in an Authorized Newspaper in The City of New York and, if such Securities
are then listed on any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the Trustee that
such stock exchange so requires, on a Business Day at least twice, the first
such publication to be not earlier than the earliest date and the second such
publication not later than the latest date prescribed for the giving of such
notice.


 


In any case where notice
to Holders of Registered Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given or provided. In the case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.


 


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


 


14

















 


shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.


 


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


 


Anything herein to the
contrary notwithstanding, unless otherwise expressly stated in this Indenture
or pursuant to Section 301 with respect to the Securities of any series,
if a Depository or its nominee is the Holder of any Security, then any notice
given to such Depository or its nominee, as the case may be, in respect of such
Security may be given by the Company or the Trustee electronically in
accordance with the procedures of such Depository as in effect from time to
time in lieu of giving notice to such Depository or such nominee, as the case
may be, by mail and all references in this Indenture to the mailing of any such
notice shall be deemed to mean, solely as concerns the notice given by the
Company or the Trustee to such Depository or its nominee, as the case may be,
the electronic transmission of such notice as aforesaid, mutatis mutandis.


 


Section 107.                                Language of
Notices.


 


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


 


Section 108.                                Conflict
with Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with any duties under any required provision of
the Trust Indenture Act imposed hereon by Section 318(c) thereof,
such required provision shall control.


 


Section 109.                                Effect of
Headings and Table of Contents.


 


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


 


Section 110.                                Successors
and Assigns.


 


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


 


Section 111.                                Separability
Clause.


 


In case any provision in
this Indenture, any Security or any Coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not, to the fullest extent permitted by law, in any way be
affected or impaired thereby.


 


15














 


Section 112.                                Benefits of
Indenture.


 


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


 


Section 113.                                Governing
Law.


 


This Indenture, the
Securities and any Coupons shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made or
instruments entered into and, in each case, performed in said State.


 


Section 114.                                Legal
Holidays.


 


Unless otherwise
specified in or pursuant to this Indenture or any Securities, in any case where
any Interest Payment Date, Stated Maturity or Maturity of, or any other day on
which a payment is due with respect to, any Security shall be a day which is
not a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture, any Security or any Coupon other than a provision
in any Security or Coupon or in the Board Resolution, Officers’ Certificate or
supplemental indenture establishing the terms of any Security that specifically
states that such provision shall apply in lieu hereof) payment need not be made
at such Place of Payment on such date, but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, at the Stated
Maturity or Maturity or on any such other payment date, as the case may be, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or other payment date, as the case may be, to the next succeeding Business Day.


 


Section 115.                                Counterparts.


 


This Indenture may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.


 


Section 116.                                Judgment
Currency.


 


The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment against it in any court, it is necessary
to convert the sum due in respect of the principal of, or premium or interest,
if any, or Additional Amounts on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day preceding that on which a final unappealable judgment is given and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the


 


16

















 


Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed. The provisions of
this Section 116 shall not be applicable with respect to any payment due
on a Security which is payable in Dollars.


 


Section 117.                                Extension of
Payment Dates.


 


In the event that (i) the
terms of any Security or Coupon appertaining thereto established in or pursuant
to this Indenture permit the Company or any Holder thereof to extend the date
on which any payment of principal of, or premium, if any, or interest, if any,
on, or Additional Amounts, if any, with respect to such Security or Coupon is
due and payable and (ii) the due date for any such payment shall have been
so extended, then all references herein to the Stated Maturity of such payment
(and all references of like import) shall be deemed to refer to the date as so
extended.


 


Section 118.                                Immunity of
Shareholders, Directors, Officers and Agents of the Company.


 


No recourse under or upon
any obligation, covenant or agreement contained in this Indenture or in any
Security, or because of any indebtedness evidenced thereby, or for any claim
based thereon or otherwise in respect thereof, shall be had against any past,
present or future shareholder, incorporator, employee, officer or director, as
such, of the Company or any predecessor or successor to the Company, either
directly or through the Company or any such predecessor or successor, under any
rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities; it being expressly understood that, without limitation to the
foregoing, this Indenture and the Securities and the obligations created
hereunder and thereunder are solely corporate, limited liability company,
partnership, limited partnership or similar obligations, as the case may be, of
the Company and that no such personal liability whatever shall attach to, or is
or shall be incurred by, any past, present or future shareholder, incorporator,
employee, officer or director, as such, of the Company or any of its
predecessors or successors, 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 Security or implied
herefrom or therefrom and that any and all such personal liability of every
type 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 past,
present or future shareholder, incorporator, employee, 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 Security or implied herefrom or 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 the Securities. As used in
this Section 118, all references to “shareholders”


 


17

















 


shall be deemed to mean, with respect to any Person,
any past, present or future holder or owner of an equity interest in such
Person, including, without limitation, owners or holders of capital stock,
limited or general partnership interests and limited liability company
interests.


 


ARTICLE TWO


 


SECURITIES FORMS


 


Section 201.                                Forms
Generally.


 


Each Registered Security,
Bearer Security, Coupon and temporary or permanent global Security issued
pursuant to this Indenture shall be in the form established by or pursuant to a
Board Resolution and set forth in an Officers’ Certificate, or established in
one or more indentures supplemental hereto, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by any officer of the Company executing such Security or Coupon as
evidenced by the execution of such Security or Coupon.


 


Unless otherwise provided
in or pursuant to this Indenture or any Securities, the Securities shall be
issuable in registered form without Coupons.


 


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


 


Section 202.                                Form of
Trustee’s Certificate of Authentication.


 


Subject to Section 611,
the Trustee’s certificate of authentication shall be in substantially the
following form:


 


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


 


	
   

  	
  ·,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


18

















 


Section 203.                                Securities
in Global Form.


 


Unless otherwise provided
in or pursuant to this Indenture or any Securities, the Securities shall not be
issuable in global form. If Securities of a series shall be issuable in
temporary or permanent global form, any such Security may provide that it or
any number of such Securities shall represent the aggregate amount of all
Outstanding Securities of such series (or such lesser amount as is permitted by
the terms thereof) from time to time endorsed thereon or reflected on the books
and records of the Trustee and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased
or reduced to reflect exchanges. Any endorsement of any Security in global form
to reflect the amount, or any increase or decrease in the amount, or changes in
the rights of Holders, of Outstanding Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be specified therein
or pursuant to Section 301 with respect to such Security or in the Company
Order to be delivered pursuant to Section 303 or 304 with respect thereto.
Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in global form in the
manner and upon instructions given by the Person or Persons specified therein
or pursuant to Section 301 with respect to such Security or in the
applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers’ Certificate and need not be
accompanied by an Opinion of Counsel. Notwithstanding the foregoing provisions
of this paragraph, in the event a global Security is exchangeable for
definitive Securities as provided in Section 305, then, unless otherwise
provided in or pursuant to this Indenture with respect to the Securities of
such series, the Trustee shall deliver and redeliver such global Security to
the extent necessary to effect such exchanges, shall endorse such global
Security to reflect any decrease in the principal amount thereto resulting from
such exchanges and shall take such other actions, all as contemplated by Section 305.


 


Notwithstanding the
provisions of Section 307, unless otherwise specified in or pursuant to
this Indenture or any Securities, payment of principal of, any premium and
interest on, and any Additional Amounts in respect of, any Security in
temporary or permanent global form shall be made to the Person or Persons
specified therein.


 


Notwithstanding the
provisions of Section 308 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global
Security in registered form, the Holder of such global Security in registered
form, or (ii) in the case of a global Security in bearer form, the Person
or Persons specified pursuant to Section 301.


 


19

















 


ARTICLE THREE


 


THE SECURITIES


 


Section 301.                                Amount Unlimited;
Issuable in Series.


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more series.


 


With respect to any
Securities to be authenticated and delivered hereunder, there shall be
established in or pursuant to one or more Board Resolutions and set forth in an
Officers’ Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of any Securities of a series,


 


(1)           the
title of the Securities of such series;


 


(2)           any
limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to Section 304,
305, 306, 905 or 1107, upon repayment in part of any Security of such series
pursuant to Article Thirteen or upon surrender in part of any Security for
conversion or exchange into Common Shares or other securities or property
pursuant to its terms), and if such series may not be reopened from time to
time for the issuance of additional Securities of such series;


 


(3)           if
such Securities are to be issuable as Registered Securities, as Bearer
Securities or alternatively as Bearer Securities and Registered Securities, and
whether the Bearer Securities are to be issuable with Coupons, without Coupons
or both, and any restrictions applicable to the offer, sale or delivery of the
Bearer Securities and the terms, if any, upon which Bearer Securities may be
exchanged for Registered Securities and vice versa;


 


(4)           if
any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such
Securities are to be issued in temporary or permanent global form or both, (ii) whether
beneficial owners of interests in any such global Security may exchange such
interests for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section 305,
(iii) the name of the Depository with respect to any such global Security
and (iv) if applicable and in addition to the Persons specified in Section 305,
the Person or Persons who shall be entitled to make any endorsements on any
such global Security and to give the instructions and take the other actions
with respect to such global Security contemplated by the first paragraph of Section 203;


 


(5)           if
any of such Securities are to be issuable as Bearer Securities, the date as of
which any such Bearer Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);


 


20

















 


(6)           if
any of such Securities are to be issuable as Bearer Securities, whether
interest in respect of any portion of a temporary Bearer Security in global
form payable in respect of an Interest Payment Date therefor prior to the
exchange, if any, of such temporary Bearer Security for definitive Securities
shall be paid to any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such event, the terms
and conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;


 


(7)           the
date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which the principal and premium, if any, of such
Securities is payable;


 


(8)           the
rate or rates at which such Securities shall bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined,
the date or dates, if any, from which such interest shall begin to accrue or
the method or methods, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest payable on
Registered Securities on any Interest Payment Date, the notice, if any, to
Holders regarding the determination of interest on a floating rate Security and
the manner of giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;


 


(9)           if
in addition to or other than the place where the Corporate Trust Office of the
Trustee may from time to time be located, the place or places where the
principal of, premium, if any, and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities shall be payable, any of such
Securities that are Registered Securities may be surrendered for registration
of transfer or exchange, any of such Securities may be surrendered for
conversion or exchange and notices or demands to or upon the Company in respect
of such Securities and this Indenture may be served;


 


(10)         whether
any of such Securities are to be redeemable at the option of the Company and,
if so, the date or dates on which, the period or periods within which, the
price or prices at which and the other terms and conditions upon which such Securities
may be redeemed, in whole or in part, at the option of the Company;


 


(11)         if
the Company is obligated to redeem or purchase any of such Securities pursuant
to any sinking fund or analogous provision or at the option of any Holder
thereof and, if so, the date or dates on which, the period or periods within
which, the price or prices at which and the other terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of such
Securities so redeemed or purchased;


 


(12)         the
denominations in which any of such Securities that are Registered Securities
shall be issuable if other than denominations of $1,000 and any integral
multiples thereof, and the denominations in which any of such Securities that
are Bearer Securities shall be issuable if other than the denomination of
$5,000;


 


21














 


(13)         whether
the Securities of the series will be convertible into and/or exchangeable for
Common Shares or other securities or property, and if so, the terms and
conditions upon which such Securities will be so convertible or exchangeable,
and any deletions from or modifications or additions to this Indenture to
permit or to facilitate the issuance of such convertible or exchangeable
Securities or the administration thereof;


 


(14)         if
other than the principal amount thereof, the portion of the principal amount of
any of such Securities that shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the method by which
such portion is to be determined;


 


(15)         if
other than Dollars, the Foreign Currency in which payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of
such Securities shall be payable;


 


(16)         if
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities are to be payable, at the election of the
Company or a Holder thereof or otherwise, in Dollars or in a Foreign Currency
other than that in which such Securities are stated to be payable, the date or
dates on which, the period or periods within which, and the other terms and
conditions upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such Securities are
stated to be payable and the Currency in which such Securities or any of them
are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide for or
to facilitate the issuance of Securities denominated or payable, at the
election of the Company or a Holder thereof or otherwise, in a Foreign
Currency;


 


(17)         if
the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with
reference to an index, formula or other method or methods (which index, formula
or method or methods may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and, if so, the
terms and conditions upon which and the method by which such amounts shall be
determined and paid or payable;


 


(18)         any
deletions from, modifications of or additions to the Events of Default or
covenants of the Company with respect to such Securities (whether or not such
Events of Default or covenants are consistent with the Events of Default or covenants
set forth herein), and, if any additional covenants not contained in this
Indenture as of its date shall be applicable with respect to such Securities,
whether Section 1006 shall be applicable with respect to any such
additional covenants;


 


(19)         if
any one or more of Section 401 relating to satisfaction and
discharge,  Section 402(2) relating
to defeasance or Section 402(3) relating to covenant defeasance shall
not be applicable to the Securities of such series, and any covenants in
addition to or other than those covenants, if any, specified in Section 402(3) relating
to the Securities of such series which shall be subject to covenant defeasance,
and, if the Securities of such series are subject to repurchase or repayment at
the option of the Holders thereof pursuant


 


22

















 


to Article Thirteen, if the Company’s obligation to repurchase or
repay such Securities will not be subject to satisfaction and discharge
pursuant to Section 401 or to defeasance pursuant to Section 402,
and, if the Holders of such Securities have the right to convert or exchange
such Securities into Common Shares or other securities or property, if the
right to effect such conversion or exchange will be subject to satisfaction and
discharge pursuant to Section 401 or to defeasance or covenant defeasance
pursuant to Section 402, and any deletions from, or modifications or
additions to, the provisions of Article Four in respect of the Securities
of such series;


 


(20)         if
any of such Securities are to be issuable upon the exercise of warrants, and
the time, manner and place for such Securities to be authenticated and
delivered;


 


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


 


(22)         whether
and under what circumstances the Company will pay Additional Amounts on such
Securities to any Holder who is a United States Alien in respect of specified
taxes, assessments or other government charges and, if so, whether the Company
will have the option to redeem such Securities rather than pay such Additional
Amounts;


 


(23)         if
there is more than one Trustee, the identity of the Trustee and, if not the
Trustee, the identity of each Security Registrar, Paying Agent or
Authenticating Agent with respect to such Securities;


 


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


 


(25)         whether
the Securities of such series are to be secured by any property, assets or
other collateral and, if so, the applicable collateral, any deletions from, or
modifications or additions to, the provisions of Article Sixteen hereof or
any other provisions of this Indenture in connection therewith or in connection
with any other instrument or agreement entered into in connection therewith;
and


 


(26)         any
other terms of such Securities (whether or not such other terms are consistent
or inconsistent with any other terms of this Indenture) and any deletions from
or modifications or additions to this Indenture in respect of such Securities.


 


All Securities of any one
series and all Coupons, if any, appertaining to Bearer Securities of such
series shall be substantially identical except as to Currency of payments due
thereunder,


 


23

















 


denomination and the rate of interest, or method of
determining the rate of interest, if any, Maturity, and the date from which
interest, if any, shall accrue and except as may otherwise be provided by the
Company in or pursuant to the Board Resolution and set forth in the Officers’
Certificate or in any indenture or indentures supplemental hereto pertaining to
such series of Securities. The terms of the Securities of any series may
provide, without limitation, that the Securities shall be authenticated and
delivered by the Trustee on original issue from time to time upon written or
(if acceptable to the Trustee) oral order of persons designated in the Board
Resolution, Officers’ Certificate or supplemental indenture, as the case may
be, pertaining to such series of Securities (telephonic instructions to be
promptly confirmed in writing by such person) and that such persons are
authorized to determine, consistent with such Board Resolution, Officers’
Certificate or supplemental indenture, such terms and conditions of the
Securities of such series as are specified in such Board Resolution, Officers’
Certificate or supplemental indenture. All Securities of any one series need
not be issued at the same time and, unless otherwise provided by the Company as
contemplated by this Section 301, a series may be reopened from time to
time without the consent of any Holders for issuances of additional Securities
of such series.


 


If any of the terms of
the Securities of any series shall be established by action taken by or
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of such series.


 


Section 302.                                Currency;
Denominations.


 


Unless otherwise provided
in or pursuant to this Indenture, the principal of, any premium and interest on
and any Additional Amounts with respect to the Securities shall be payable in
Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered
Securities denominated in Dollars shall be issuable in registered form without
Coupons in denominations of $1,000 and any integral multiples thereof, and the
Bearer Securities denominated in Dollars shall be issuable in the denomination
of $5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.


 


Section 303.                                Execution,
Authentication, Delivery and Dating.


 


Securities shall be
executed on behalf of the Company by its Chairman, its Chief Executive Officer,
its President or one of its Vice Presidents and by its Treasurer, one of its
Assistant Treasurers, its Secretary or one of its Assistant Secretaries and may
(but need not) have its corporate or other seal or a facsimile thereof
reproduced thereon. Coupons shall be executed on behalf of the Company by its
Chairman, its Chief Executive Officer, its President or any of its Vice
Presidents. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.


 


Securities and any
Coupons appertaining thereto bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall, to
the fullest extent permitted by law, bind the Company, notwithstanding that
such individuals or any


 


24

















 


of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or Coupons.


 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities, together with any Coupons appertaining thereto, executed by
the Company, to the Trustee for authentication and, provided that the Board
Resolution and Officers’ Certificate or supplemental indenture or indentures
with respect to such Securities referred to in Section 301 and a Company
Order for the authentication and delivery of such Securities have been
delivered to the Trustee, the Trustee in accordance with the Company Order and
subject to the provisions hereof and of such Securities shall authenticate and
deliver such Securities. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities
and any Coupons appertaining thereto, the Trustee shall be entitled to receive,
and (subject to the applicable provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon, an Opinion
of Counsel to the following effect, which Opinion of Counsel may contain such
assumptions, qualifications and limitations as such counsel shall deem
appropriate:


 


(a)           the
form or forms and terms of such Securities and Coupons, if any, have been
established in conformity with Sections 201 and 301 of this Indenture; and


 


(b)           all
conditions precedent set forth in Sections 201, 301 and 303 of this
Indenture to the authentication and delivery of such Securities and Coupons, if
any, appertaining thereto have been complied with and that such Securities, and
Coupons, when completed by appropriate insertions (if applicable), executed by
duly authorized officers of the Company, delivered by duly authorized officers
of the Company to the Trustee for authentication pursuant to this Indenture,
and authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement thereof may
be subject to or limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar laws
relating to or affecting creditors’ rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).


 


If all the Securities of
any series are not to be issued at one time, it shall not be necessary to
deliver an Opinion of Counsel at the time of issuance of each Security, but
such opinion, with such modifications as counsel shall deem appropriate, shall
be delivered at or before the time of issuance of the first Security of such
series. After any such first delivery, any separate request by the Company that
the Trustee authenticate Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.


 


The Trustee shall not be
required to authenticate or to cause an Authenticating Agent to authenticate
any 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


 


25

















 


a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken.


 


Each Registered Security
shall be dated the date of its authentication. Each Bearer Security and any
Bearer Security in global form shall be dated as of the date specified in or
pursuant to this Indenture.


 


No Security or Coupon
appertaining thereto shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section 202
or 611 executed by or on behalf of the Trustee or by the Authenticating Agent
by the manual signature of one of its authorized signatories. Such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307 or as may otherwise be provided in or pursuant
to this Indenture, the Trustee shall not authenticate and deliver any Bearer
Security unless all Coupons appertaining thereto then matured have been
detached and cancelled.


 


Section 304.                                Temporary
Securities.


 


Pending the preparation
of definitive Securities, the Company may execute and deliver to the Trustee
and, upon Company Order, the Trustee shall authenticate and deliver, in the
manner provided in Section 303, temporary Securities in lieu thereof which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized in or pursuant to this Indenture, in bearer form with one or more
Coupons or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing
such Securities may determine, as conclusively evidenced by their execution of
such Securities. Such temporary Securities may be in global form.


 


Except in the case of
temporary Securities in global form, which shall be exchanged in accordance
with the provisions set forth in this Indenture or the provisions established
pursuant to Section 301, if temporary Securities are issued, the Company
shall cause definitive Securities to be prepared without unreasonable delay.
Except as otherwise provided in or pursuant to this Indenture, after the
preparation of definitive Securities of the same series and containing terms
and provisions that are identical to those of any temporary Securities, such
temporary Securities shall be exchangeable for such definitive Securities upon
surrender of such temporary Securities at an Office or Agency for such
Securities, without charge to any Holder thereof. Except as otherwise provided
in or pursuant to this Indenture, upon surrender for cancellation of any one or
more temporary Securities (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations of the same series and containing identical terms
and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered Security;
and provided, further, that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer Security
only in compliance with the conditions set forth in or pursuant to this
Indenture. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary global Security, until so exchanged the temporary
Securities of any


 


26

















 


series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.


 


Section 305.                                Registration,
Transfer and Exchange.


 


With respect to the
Registered Securities of each series, if any, the Company shall cause to be
kept a register (each such register being herein sometimes referred to as the
“Security Register”) at an Office or Agency for such series in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of the Registered Securities of such series and of
transfers of the Registered Securities of such series. Such Office or Agency
shall be the “Security Registrar” for that series of Securities. Unless
otherwise specified in or pursuant to this Indenture or the Securities, the
initial Security Registrar for each series of Securities shall be as specified
in the last paragraph of Section 1002. The Company shall have the right to
remove and replace from time to time the Security Registrar for any series of
Securities; provided that no such removal or replacement shall be effective
until a successor Security Registrar with respect to such series of Securities
shall have been appointed by the Company and shall have accepted such
appointment. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.


 


Except as otherwise
provided in or pursuant to this Indenture, upon surrender for registration of
transfer of any Registered Security of any series at any Office or Agency for
such series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series denominated as authorized in or
pursuant to this Indenture, of a like aggregate principal amount bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.


 


Except as otherwise
provided in or pursuant to this Indenture, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series containing identical terms and provisions, in any
authorized denominations, and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any Office or Agency for such
series. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive.


 


If provided in or
pursuant to this Indenture, with respect to Securities of any series, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities of such series containing identical terms, denominated as
authorized in or pursuant to this Indenture and in the same aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at any Office
or Agency for such series, with all unmatured Coupons and all matured Coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount
equal to the face amount of such missing Coupon or Coupons, or the surrender of
such missing Coupon or Coupons may be


 


27

















 


waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless from and against any and all loss,
liability or expense. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business
at such Office or Agency on (i) any Regular Record Date and before the
opening of business at such Office or Agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business
at such Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such Coupon when due in accordance with the provisions
of this Indenture.


 


If provided in or
pursuant to this Indenture with respect to Securities of any series, at the
option of the Holder, Registered Securities of such series may be exchanged for
Bearer Securities upon such terms and conditions as may be provided in or
pursuant to this Indenture with respect to such series.


 


Whenever any Securities
are surrendered for exchange as contemplated by the immediately preceding two
paragraphs, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.


 


Notwithstanding the
foregoing, except as otherwise provided in or pursuant to this Indenture, the
global Securities of any series shall be exchangeable for definitive certificated
Securities of such series only if (i) the Depository for such global
Securities notifies the Company that it is unwilling or unable to continue as a
Depository for such global Securities or at any time the Depository for such
global Securities ceases to be a clearing agency registered as such under the
Exchange Act, if so required by applicable law or regulation, and no successor
Depository for such Securities shall have been appointed within 90 days of
such notification or of the Company becoming aware of the Depository’s ceasing
to be so registered, as the case may be, (ii) the Company, in its sole
discretion, determines that the Securities of such series shall no longer be
represented by one or more global Securities and executes and delivers to the
Trustee a Company Order to the effect that such global Securities shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to such Securities.


 


If the beneficial owners
of interests in a global Security are entitled to exchange such interests for
definitive Securities as the result of an event described in clause (i), (ii) or
(iii) of the


 


28

















 


preceding paragraph, then without unnecessary delay
but in any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive Securities
in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such global Security shall be surrendered from time to
time by the Depository (or its custodian) as shall be specified in the Company
Order with respect thereto (which the Company agrees to deliver), and in
accordance with instructions given to the Trustee and the Depository (which
instructions shall be in writing but need not be contained in or accompanied by
an Officers’ Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company’s agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which
(unless such Securities are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for
the global Security shall be issuable only in the form in which the Securities
are issuable, as provided in or pursuant to this Indenture) shall be in the
form of Bearer Securities or Registered Securities, or any combination thereof,
and which shall be in such denominations and, in the case of Registered
Securities, registered in such names, as shall be specified by the Depository,
but subject to the satisfaction of any certification or other requirements to the
issuance of Bearer Securities; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of the same series to be redeemed and ending on the
relevant Redemption Date; and provided, further,
that (unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository (or its custodian) or such other Depository (or
its custodian) referred to above in accordance with the instructions of the
Company referred to above, and the Trustee shall endorse such global Security
to reflect the decrease in the principal amount thereof resulting from such
exchange. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the Office or Agency for such
Security where such exchange occurs on or after (i) any Regular Record
Date for such Security and before the opening of business at such Office or
Agency on the next Interest Payment Date, or (ii) any Special Record Date
for such Security and before the opening of business at such Office or Agency
on the related proposed date for payment of interest or Defaulted Interest, as
the case may be, interest shall not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but shall be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such global Security shall be payable in accordance with the
provisions of this Indenture.


 


All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Company evidencing the same debt and entitling the Holders
thereof to the same benefits under this Indenture as the Securities surrendered
upon such registration of transfer or exchange.


 


29














 


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


 


No service charge shall
be made for any registration of transfer or exchange of Securities, or any
redemption or repayment of Securities, or any conversion or exchange of
Securities for other types of securities or property, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 905
or 1107, upon repayment or repurchase in part of any Registered Security
pursuant to Article Thirteen, or upon surrender in part of any Registered
Security for conversion or exchange into Common Shares or other securities or
property pursuant to its terms, in each case not involving any transfer.


 


Except as otherwise
provided in or pursuant to this Indenture, the Company shall not be required (i) to
issue, register the transfer of or exchange any Securities during a period
beginning at the opening of business 15 days before the day of the selection
for redemption of Securities of like tenor and terms and of the same series
under Section 1103 and ending at the close of business on the day of such
selection, or (ii) to register the transfer of or exchange any Registered
Security, or portion thereof, so selected for redemption, except in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to such Bearer Security,
that such Bearer Security may be exchanged for a Registered Security of like
tenor and terms and of the same series, provided that such Registered Security
shall be simultaneously surrendered for redemption with written instruction for
payment consistent with the provisions of this Indenture or (iv) to issue,
register the transfer of or exchange any Security which, in accordance with its
terms, has been surrendered for repayment at the option of the Holder pursuant
to Article Thirteen and not withdrawn, except the portion, if any, of such
Security not to be so repaid.


 


Section 306.                                Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security
or a Security with a mutilated Coupon appertaining to it is surrendered to the
Trustee, subject to the provisions of this Section 306, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series containing identical terms and of like
principal amount and bearing a number not contemporaneously outstanding, with
Coupons appertaining thereto corresponding to the Coupons, if any, appertaining
to the surrendered Security.


 


If there be delivered to
the Company and to the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or Coupon, and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless from and against any and all loss, liability
or expense, then, in the absence of notice to the Company or the Trustee that
such Security or Coupon has been acquired by a bona fide purchaser, the Company
shall execute and, upon the Company’s request the Trustee shall authenticate
and deliver, in


 


30

















 


exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen Coupon appertains with
all appurtenant Coupons not destroyed, lost or stolen, a new Security of the
same series containing identical terms and of like principal amount and bearing
a number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.


 


Notwithstanding the foregoing
provisions of this Section 306, in case any mutilated, destroyed, lost or
stolen Security or Coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security or Coupon; provided, however,
that payment of principal of, any premium or interest on or any Additional
Amounts with respect to any Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an Office or Agency for such
Securities located outside the United States and, unless otherwise provided in
or pursuant to this Indenture, any interest on Bearer Securities and any
Additional Amounts with respect to such interest shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.


 


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


 


Every new Security, with
any Coupons appertaining thereto issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security, or in exchange for a Security to
which a destroyed, lost or stolen Coupon appertains shall constitute a separate
obligation of the Company, whether or not the destroyed, lost or stolen
Security and Coupons appertaining thereto or the destroyed, lost or stolen
Coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of such series and any Coupons, if any, duly issued hereunder.


 


The provisions of this
Section, as amended or supplemented pursuant to this Indenture with respect to
particular Securities or generally, shall (to the extent lawful) be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.


 


Section 307.                                Payment of
Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved.


 


Unless otherwise provided
in or pursuant to this Indenture, any interest on and any Additional Amounts
with respect to any Registered Security which shall be payable, and are
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name such Security (or one or more Predecessor
Securities) is registered as of the close of business on the Regular Record
Date for such interest. Unless otherwise provided in or pursuant to this
Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the Coupon


 


31

















 


relating to such
Interest Payment Date and interest shall not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon when
due in accordance with the provisions of this Indenture.


 


Unless otherwise provided
in or pursuant to this Indenture, any interest on and any Additional Amounts
with respect to any Registered Security which shall be payable, but shall not
be punctually paid or duly provided for, on any Interest Payment Date for such
Registered Security (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Holder thereof on the relevant Regular Record Date by
virtue of having been such Holder; and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2) below:


 


(1)                                  The
Company may elect to make payment of any Defaulted Interest to the Person in
whose name such Registered Security (or a Predecessor Security thereof) shall
be 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 such Registered 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 on or prior to the date of the proposed payment, such money
when so deposited to be held in trust for the benefit of the Person entitled to
such Defaulted Interest as in this Clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of 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 Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security after
the close of business at such Office or Agency on any Special Record Date and
before the opening of business at such Office or Agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Defaulted Interest and
Defaulted Interest shall not be payable on such proposed date of payment in
respect of the


 


32

















 


Registered Security issued in exchange for such Bearer Security, but
shall be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.


 


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


 


Unless otherwise provided
in or pursuant to this Indenture or the Securities of any particular series, at
the option of the Company, interest on Registered Securities that bear interest
may be paid by mailing a check to the address of the Person entitled thereto as
such address shall appear in the Security Register or by transfer to an account
maintained by the payee with a bank located in the United States of America.


 


Subject to the foregoing
provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.


 


Section 308.                                Persons
Deemed Owners.


 


Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Security is registered in the Security Register as the owner of
such Registered Security for the purpose of receiving payment of principal of,
any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all other
purposes whatsoever, whether or not any payment with respect to such Registered
Security shall be overdue, and none of the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.


 


The Company, the Trustee
and any agent of the Company or the Trustee may treat the bearer of any Bearer
Security or the bearer of any Coupon as the absolute owner of such Security or
Coupon for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not any payment with respect to
such Security or Coupon shall be overdue, and none of the Company, the Trustee
or any agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


No holder of any
beneficial interest in any global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such global
Security, and such Depository may be treated by the Company, the Trustee, and
any agent of the Company or the Trustee as the owner of such global Security
for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.


 


33

















 


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


 


Section 309.                                Cancellation.


 


All Securities and
Coupons surrendered for payment, redemption, registration of transfer, exchange
or conversion or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Coupons, as well as Securities and Coupons
surrendered directly to the Trustee for any such purpose, shall be cancelled
promptly by the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All cancelled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee in accordance with customary
procedures.


 


Section 310.                                Computation
of Interest.


 


Except as otherwise
provided in or pursuant to this Indenture or in the Securities of any series,
interest on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.


 


ARTICLE FOUR




SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 401.                                Satisfaction
and Discharge.


 


Unless, pursuant to Section 301,
the provisions of this Section 401 shall not be applicable with respect to
the Securities of any series, upon the direction of the Company by a Company
Order, this Indenture shall cease to be of further effect with respect to any
series of Securities specified in such Company Order and any Coupons
appertaining thereto, and the Trustee, on receipt of a Company Order, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when


 


(1)                                  either


 


(a)                                  all
Securities of such series theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Coupons appertaining to
Bearer Securities of such series surrendered in exchange for Registered
Securities of such series and maturing after such exchange whose surrender is
not required or has been waived as provided in Section 305, (ii) Securities
and Coupons of


 


34

















 


such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date whose surrender has been waived as provided
in Section 1106, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or


 


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


 


(i)                                     have
become due and payable, or


 


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


 


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


 


and
the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in the Currency in which such Securities are payable in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation, including the principal of, any premium and
interest on, and, to the extent that the Securities of such series provide for
the payment of Additional Amounts thereon and the amount of any such Additional
Amounts which are or will be payable with respect to the Securities of such series
is at the time of deposit reasonably determinable by the Company (in the
exercise by the Company of its sole and absolute discretion), any Additional
Amounts with respect to, such Securities and any Coupons appertaining thereto,
to the date of such deposit (in the case of Securities which have become due
and payable) or to the Maturity thereof, as the case may be;


 


(2)                                  the
Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Outstanding Securities of such series and any
Coupons appertaining thereto; and


 


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


 


35

















 


In the event there are
Securities of two or more series Outstanding hereunder, the Trustee shall be
required to execute an instrument acknowledging satisfaction and discharge of
this Indenture only if requested to do so with respect to Securities of such
series as to which it is Trustee and if the other conditions thereto are met.


 


Notwithstanding the
satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 606
and, if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the respective obligations of the Company and
the Trustee with respect to the Securities of such series under
Sections 305, 306, 403, 404, 1002 and 1003, any rights of Holders of the
Securities of such series (unless otherwise provided pursuant to Section 301
with respect to the Securities of such series) to convert or exchange, and the
obligations of the Company to convert or exchange, such Securities into Common
Shares or other securities or property, and, if expressly provided pursuant to Section 301
with respect to the Securities of such series, any rights of Holders of the
Securities of such series to require the Company to repurchase or repay, and
the obligations of the Company to repurchase or repay, such Securities at the
option of such Holders as contemplated by Article Thirteen hereof, shall
survive, and, if the Securities of such series provide for the payment of
Additional Amounts pursuant to Section 1004, the Company will remain
obligated, following satisfaction and discharge of this Indenture with respect
to the Securities of such series, to pay Additional Amounts with respect to
such Securities as contemplated by Section 1004, to the extent (and only
to the extent) that the Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional Amounts
pursuant to subclause (b) of clause (1) of this Section.


 


Section 402.                                Defeasance
and Covenant Defeasance.


 


(1)                                  Unless,
pursuant to Section 301, either or both of (i) defeasance of the
Securities of or within a series under clause (2) of this Section 402
or (ii) covenant defeasance of the Securities of or within a series under
clause (3) of this Section 402 shall not be applicable with respect
to the Securities of such series, then such provisions, together with the other
provisions of this Section 402 (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any Coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to the
Securities of or within such series and any Coupons appertaining thereto, elect
to have Section 402(2) or Section 402(3) be applied to such
Outstanding Securities and any Coupons appertaining thereto upon compliance
with the conditions set forth below in this Section 402. Unless otherwise
specified pursuant to Section 301 with respect to the Securities of any
series, defeasance under clause (2) of this Section 402 and covenant
defeasance under clause (3) of this Section 402 may be effected with
respect to any or all of the Outstanding Securities of any series. To the
extent that the terms of any Security or Coupon appertaining thereto
established in or pursuant to this Indenture permit the Company or any Holder
thereof to extend the date on which any payment of principal of, or premium, if
any, or interest, if any, on, or Additional Amounts, if any, with respect to
such Security or Coupon is due and payable, then unless otherwise provided
pursuant to Section 301, the right to extend such date shall terminate
upon defeasance or covenant defeasance, as the case may be.


 


36

















 


(2)                                  Upon
the Company’s exercise of the above option applicable to this Section 402(2) with
respect to any Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Outstanding
Securities and any Coupons appertaining thereto on the date the conditions set
forth in clause (4) of this Section 402 are satisfied (hereinafter,
“defeasance”). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any Coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of
this Section 402 and the other Sections of this Indenture referred to in
clauses (i) through (iv) of this paragraph, and shall be deemed to
have satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder:  (i) the
rights of Holders of such Outstanding Securities and any Coupons appertaining
thereto to receive, solely (except as provided in clause (ii) below) from
the trust fund described in clause (4)(a) of this Section 402 and as
more fully set forth in this Section 402 and Section 403, payments in
respect of the principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, with respect to, such Securities and any Coupons
appertaining thereto when such payments are due, (ii) the obligations of
the Company and the Trustee with respect to such Securities under Sections 305,
306, 1002 and 1003 and, if applicable to the Securities of such series, any
rights of Holders of such Securities (unless otherwise provided pursuant to Section 301
with respect to the Securities of such series) to convert or exchange, and the
obligations of the Company to convert or exchange, such Securities into Common
Shares or other securities or property, and, if expressly provided pursuant to Section 301
with respect to the Securities of such series, any rights of Holders of the
Securities of such series to require the Company to repurchase or repay, and
the obligations of the Company to repurchase or repay, such Securities at the
option of such Holders as contemplated by Article Thirteen hereof, and, if
the Securities of such series provide for the payment of Additional Amounts
pursuant to Section 1004, the Company will remain obligated, following
defeasance of this Indenture with respect to the Securities of such series, to
pay Additional Amounts with respect to such Securities as contemplated by Section 1004,
to the extent (and only to the extent) that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to clause 4(a) of this Section 402, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 402 and Sections 403 and 404. The Company may exercise its
option under this Section 402(2) notwithstanding the prior exercise
of its option under Section 402(3) with respect to such Securities
and any Coupons appertaining thereto.


 


(3)                                  Upon
the Company’s exercise of the above option applicable to this Section 402(3) with
respect to any Securities of or within a series, the Company shall be released
from its obligations under any covenants applicable to such Securities which
are specified pursuant to Section 301 as being subject to covenant
defeasance on and after the date the conditions set forth in clause (4) of
this Section 402 are satisfied (hereinafter, “covenant defeasance”), and
such Securities and any Coupons appertaining thereto shall thereafter be deemed
to be not “Outstanding” for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed
“Outstanding” for all other purposes hereunder. For this purpose, such covenant


 


37

















 


defeasance means that with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Company may omit to comply
with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under Section 501(5) or
501(11) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and Coupons appertaining
thereto shall be unaffected thereby.


 


(4)                                  The
following shall be the conditions to application of clause (2) or (3) of
this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:


 


(a)                                  The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 607 who
shall agree to comply with the provisions of this Section 402 applicable
to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
(1) an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as payable
at Stated Maturity or, if such defeasance or covenant defeasance is to be effected
in compliance with subsection (f) below, on the relevant Redemption
Date, as the case may be, or (2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the basis of the
Currency in which such Securities and Coupons appertaining thereto are then
specified as payable at Stated Maturity or, if such defeasance or covenant
defeasance is to be effected in compliance with subsection (f) below,
on the relevant Redemption Date, as the case may be) which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment of principal of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the principal of (and premium, if any)
and interest, if any, on, and, to the extent that such Securities provide for
the payment of Additional Amounts thereon and the amount of any such Additional
Amounts which are or will be payable with respect to the Securities of such
series is at the time of deposit reasonably determinable by the Company (in the
exercise by the Company of its sole and absolute discretion), any Additional
Amounts with respect to, such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or installment of
principal or interest or the applicable Redemption Date, as the case may be,
and (z) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any Coupons appertaining thereto
on the day on which such payments are


 


38

















 


due and payable in accordance with the terms of this Indenture and of
such Securities and any Coupons appertaining thereto.


 


(b)                                 Such
defeasance or covenant defeasance shall not result in a breach or violation of,
or constitute a default under, this Indenture.


 


(c)                                  No
Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to such Securities and any Coupons
appertaining thereto shall have occurred and be continuing on the date of such
deposit, and, solely in the case of defeasance under Section 402(2), no
Event of Default with respect to the Company under clauses (8), (9) or (10) of
Section 501 with respect to such Securities and any Coupons appertaining
thereto or event which with notice or lapse of time or both would become an
Event of Default with respect to the Company under clauses (8), (9) or (10) of
Section 501 with respect to such Securities and any Coupons appertaining
thereto shall have occurred and be continuing at any time during the period
ending on and including the 91st day after the date of such deposit (it being
understood that this condition to defeasance under Section 402(2) shall
not be deemed satisfied until the expiration of such period).


 


(d)                                 In
the case of defeasance pursuant to Section 402(2), the Company shall have
delivered to the Trustee an opinion of independent counsel reasonably
acceptable to the Trustee stating that (x) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or (y) since
the date of this Indenture there has been a change in applicable U.S. federal
income tax law, in either case to the effect that, and based thereon such
opinion of independent counsel shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred; or, in the case of covenant defeasance pursuant to
Section 402(3), the Company shall have delivered to the Trustee an opinion
of independent counsel reasonably acceptable to the Trustee to the effect that
the Holders of such Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such covenant defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.


 


(e)                                  The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance or covenant defeasance, as the case may be, under this Indenture
have been complied with.


 


(f)                                    If
the monies or Government Obligations or combination thereof, as the case may
be, deposited under clause (a) above are sufficient to pay the principal
of, and premium, if any, and interest, if any, on and, to the extent provided
in such clause (a), Additional Amounts with respect to, such Securities
provided such Securities are redeemed on a particular Redemption Date, the
Company shall have given the Trustee


 


39

















 


irrevocable instructions to redeem such Securities on such date and to
provide notice of such redemption to Holders as provided in or pursuant to this
Indenture.


 


(g)                                 Notwithstanding
any other provisions of this Section 402(4), such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301.


 


(5)                                  Subject
to the provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee—collectively for purposes of this Section 402(5) and
Section 403, the “Trustee”) pursuant to clause (4)(a) of Section 402
in respect of any Outstanding Securities of any series and any Coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any Coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any Subsidiary or Affiliate of the
Company acting as Paying Agent) as the Trustee may determine, to the Holders of
such Securities and any Coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from
other funds except to the extent required by law.


 


Unless otherwise
specified in or pursuant to this Indenture or any Securities, if, after a
deposit referred to in Section 402(4)(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has
been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has
been made, the indebtedness represented by such Security and any Coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any), and interest, if any, on, and Additional Amounts, if any, with respect
to, such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the applicable market exchange rate for such
Currency in effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge, imposed on or
assessed against the Government Obligations deposited pursuant to this Section 402
or the principal or interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.


 


40














 


Anything in this Section 402
to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as
provided in clause (4)(a) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this Section 402.


 


Section 403.                                Application
of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 1003, all money and Government Obligations
deposited with the Trustee pursuant to Section 401 or 402 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the Coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal,
premium, interest and Additional Amounts for whose payment such money has or
Government Obligations have been deposited with or received by the Trustee; but
such money and Government Obligations need not be segregated from other funds
except to the extent required by law.


 


Section 404.                                Reinstatement.


 


If the Trustee (or other
qualifying trustee appointed pursuant to Section 402(4)(a)) or any Paying
Agent is unable to apply any moneys or Government Obligations deposited
pursuant to Section 401(1) or 402(4)(a) to pay any principal of
or premium, if any, or interest, if any, on or Additional Amounts, if any, with
respect to the Securities of the applicable series by reason of any legal
proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no such deposit had occurred, until
such time as the Trustee (or other qualifying trustee) or Paying Agent is
permitted to apply all such moneys and Government Obligations to pay the principal
of and premium, if any, and interest, if any, on and Additional Amounts, if
any, in respect of the Securities of such series as contemplated by
Sections 401 or 402 as the case may be, and Section 403; provided, however, that
if the Company makes any payment of the principal of or premium, if any, or
interest if any, on or Additional Amounts, if any, in respect of the Securities
of such series following the reinstatement of its obligations as aforesaid, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the funds held by the Trustee (or other qualifying
trustee) or Paying Agent.


 


41

















 


ARTICLE FIVE




REMEDIES


 


Section 501.                                Events of
Default.


 


“Event of Default”,
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers’ Certificate establishing the terms of such series
pursuant to this Indenture:


 


(1)                                  default
in the payment of any interest, if any, on, or any Additional Amounts, if any,
payable in respect of any interest, if any, on, any of the Securities of such
series or any Coupon appertaining thereto when such interest or such Additional
Amounts, as the case may be, become due and payable, and continuance of such
default for a period of 30 days; or


 


(2)                                  default
in the payment of any principal of or premium, if any, on, or any Additional
Amounts, if any, payable in respect of any principal of or premium, if any, on,
any of the Securities of such series when due (whether at Maturity or otherwise
and whether payable in cash or in Common Shares or other securities or property);
or


 


(3)                                  default
in the deposit of any sinking fund payment or payment under any analogous
provision when due with respect to any of the Securities of such series; or


 


(4)                                  default
in the delivery when due of any securities, cash or other property (including,
without limitation, any Common Shares) when required to be delivered upon
conversion of any convertible Security of such series or upon the exchange of
any Security of such series which is exchangeable for Common Shares or other
securities or property (other than an exchange of Securities of such series for
other Securities of the same series); or


 


(5)                                  default
in the performance, or breach, of any covenant or warranty applicable to the
Company in this Indenture or any Security of such series (other than a covenant
or warranty for which the consequences of breach or nonperformance are
addressed elsewhere in this Section 501 or a covenant or warranty which
has expressly been included in this Indenture, whether or not by means of a
supplemental indenture, solely for the benefit of Securities of a series other
than such series), and continuance of such default or breach (without such
default or breach having been cured or waived in accordance of the provisions
of this Indenture) for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of such series a written notice specifying such
default or


 


42

















 


breach and requiring it to be remedied and stating that such notice is
a “Notice of Default” hereunder; or


 


(6)                                  default
after the expiration of any applicable grace period in the payment of principal
when due, or resulting in acceleration of, other indebtedness (other than
Non-recourse Debt) of the Company or any Significant Subsidiary of the Company
for borrowed money where the aggregate principal amount with respect to which
the default or acceleration has occurred exceeds $60.0 million and such
indebtedness has not been discharged, or such default in payment or
acceleration has not been cured or rescinded, prior to written notice of
acceleration of the Outstanding Securities of such series; or


 


(7)                                  failure
by the Company or any of its Subsidiaries to pay final judgments entered by a
court or courts of competent jurisdiction aggregating in excess of $60.0
million, which judgments are not paid, discharged or stayed for a period of 30
days after such judgments become final and non-appealable; or


 


(8)                                  the
Company or any Significant Subsidiary of the Company pursuant to or under or
within the meaning of any Bankruptcy Law:


 


(i)             commences a voluntary
case or proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property; or


 


(ii)          consents to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it; or


 


(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 creditors; or


 


(9)                                  an
involuntary case or other proceeding shall be commenced against the Company or
any Significant Subsidiary of the Company seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of
60 days; or


 


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


 


(i)             is for relief against
the Company or any Significant Subsidiary of the Company in an involuntary case
or proceeding; or


 


43

















 


(ii)          appoints a trustee,
receiver, liquidator, custodian or other similar official of the Company or any
Significant Subsidiary of the Company or any substantial part of their
respective properties; or


 


(iii)       orders the liquidation of
the Company or any Significant Subsidiary of the Company;


 


and, in each case in this
clause (11), the order or decree remains unstayed and in effect for 60 days; or


 


(11)                            any
other Event of Default provided in or pursuant to this Indenture with respect
to Securities of such series.


 


Section 502.                                Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default
(other than an Event of Default specified in clauses (8), (9) or (10) of
Section 501 with respect to the Company) occurs and is continuing with
respect to Securities of any series, then either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
of such series may declare the principal of all the Securities of such series,
or such lesser amount as may be provided for in the Securities of such series,
and accrued and unpaid interest, if any, thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or such lesser
amount, as the case may be, and such accrued and unpaid interest shall become
immediately due and payable. If an Event of Default specified in clause (8), (9) or
(10) of Section 501 with respect to the Company occurs with respect
to the Securities of any series, then the principal of all of the Securities of
such series, or such lesser amount as may be provided for in the Securities of
such series, and accrued an unpaid interest, if any, thereon shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of the Securities of such series. For
purposes of clarity, the parties hereto agree that references in this Indenture
to an Event of Default specified in clauses (8), (9) or (10) of Section 501
with respect to the Company shall not include any Event of Default specified in
clauses (8), (9) or (10) of Section 501 with respect to any
Significant Subsidiary of the Company.


 


At any time after
Securities of any series have been accelerated (whether by declaration of the
Trustee or the Holders or automatically) and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if


 


(1)                                  the
Company has paid or deposited with the Trustee a sum of money sufficient to pay
(or, to the extent that the terms of the Securities of such series established
pursuant to Section 301 expressly provide for payment to be made in Common
Shares or other securities or property, Common Shares or other securities or
property, together with cash in lieu of fractional shares or securities to the
extent required pursuant to the terms of such Securities, sufficient to pay)


 


44

















 


(a)                                  all
overdue installments of any interest on any Securities of such series and any
Coupons appertaining thereto which have become due otherwise than by such
declaration of acceleration and any Additional Amounts with respect thereto,


 


(b)                                 the
principal of and any premium on any Securities of such series which have become
due otherwise than by such declaration of acceleration and any Additional
Amounts with respect thereto and, to the extent permitted by applicable law,
interest thereon at the rate or respective rates, as the case may be, provided
for in or with respect to such Securities, or, if no such rate or rates are so
provided, at the rate or respective rates, as the case may be, of interest borne
by such Securities,


 


(c)                                  to
the extent permitted by applicable law, interest upon installments of any
interest, if any, which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto at the rate or
respective rates, as the case may be, provided for in or with respect to such
Securities, or, if no such rate or rates are so provided, at the rate or
respective rates, as the case may be, of interest borne by such Securities, and


 


(d)                                 all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
fees and expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 606; and


 


(2)                                  all
Events of Default with respect to Securities of such series other than the
non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to Securities of such series which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 513.


 


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


 


Section 503.                              Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants
that if:


 


(1)                                  default
is made in the payment of any interest on, or any Additional Amounts payable in
respect of any interest on, any Security or any Coupon appertaining thereto
when such interest or Additional Amounts, as the case may be, shall have become
due and payable and such default continues for a period of 30 days, or


 


(2)                                  default
is made in the payment of any principal of or premium, if any, on, or any
Additional Amounts payable in respect of any principal of or premium, if any,
on, any Security at its Maturity, or


 


(1)                                  default
is made in the deposit of any sinking fund payment when due,


 


45

















 


the Company shall, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities and any Coupons appertaining thereto, the whole amount of money
then due and payable with respect to such Securities and any Coupons
appertaining thereto, with interest upon the overdue principal, any premium
and, to the extent permitted by applicable law, upon any overdue installments
of interest and Additional Amounts at the rate or respective rates, as the case
may be, provided for or with respect to such Securities or, if no such rate or
rates are so provided, at the rate or respective rates, as the case may be, of
interest borne by such Securities, and, in addition thereto, such further
amount of money as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due to
the Trustee under Section 606.


 


If the Company fails to
pay the money it is required to pay the Trustee pursuant to the preceding
paragraph forthwith upon the demand of the Trustee, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the money so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Securities and any Coupons appertaining
thereto and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and any Coupons appertaining thereto, wherever situated.


 


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


 


Section 504.                                Trustee May File
Proofs of Claim.


 


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


 


(1)                                  to
file and prove a claim for the whole amount, or such lesser amount as may be
provided for in the Securities of such series, of the principal and any premium,
interest and Additional Amounts owing and unpaid in respect of the Securities
and any Coupons appertaining thereto and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its


 


46

















 


agents or counsel) and of the Holders of Securities or any Coupons
allowed in such judicial proceeding, and


 


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


 


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of
Securities or any Coupons to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of Securities or any Coupons, to pay to the Trustee any amount due
to it for the reasonable compensation, fees and expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.


 


Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder of a Security or any Coupon any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or Coupons or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security or any Coupon in any
such proceeding.


 


Section 505.                                Trustee May Enforce
Claims without Possession of Securities or Coupons.


 


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


 


Section 506.                                Application
of Money Collected.


 


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


 


FIRST:  To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;


 


SECOND:  To the payment of the amounts then due and
unpaid upon the Securities and any Coupons for principal and any premium,
interest and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts


 


47

















 


due and payable on
such Securities and Coupons for principal and any premium, interest and
Additional Amounts;


 


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


 


Section 507.                                Limitations
on Suits.


 


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


 


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


 


(2)                                  the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


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


 


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


 


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


 


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


 


Section 508.                                Unconditional
Right of Holders to Receive Principal and any Premium, Interest and Additional
Amounts.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security or Coupon shall have
the right, which is absolute and unconditional, to receive payment of the
principal of, any premium, if any, and (subject to Sections 305 and 307)
interest, if any, on and any Additional Amounts with respect to such Security
or such Coupon, as the case may be, on the respective Stated Maturity or
Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment pursuant to Article Thirteen
hereof at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and, in the case of any Security
which is convertible into or


 


48

















 


exchangeable for
other securities or property, to convert or exchange, as the case may be, such
Security in accordance with its terms, and to institute suit for the
enforcement of any such payment and any such right to convert or exchange, and
such right shall not be impaired without the consent of such Holder.


 


Section 509.                                Restoration
of Rights and Remedies.


 


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


 


Section 510.                                Rights and
Remedies Cumulative.


 


To the extent permitted
by applicable law and except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
Coupons in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to each and every Holder of a
Security or a Coupon is intended to be exclusive of any other right or remedy,
and every right and remedy, to the extent permitted by law, shall be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not, to the
extent permitted by law, prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 511.                                Delay or
Omission Not Waiver.


 


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


 


Section 512.                                Control by
Holders of Securities.


 


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


 


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


 


49

















 


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


 


(3)                                  such
direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action.


 


Section 513.                                Waiver of
Past Defaults.


 


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


 


(1)                                  a
default in the payment of the principal of, any premium or interest on, or any
Additional Amounts with respect to, any Security of such series or any Coupons
appertaining thereto, or


 


(2)                                  in
the case of any Securities which are convertible into or exchangeable for
Common Shares or other securities or property, a default in any such conversion
or exchange, or


 


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


 


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


 


Section 514.                                Waiver of
Usury, Stay or Extension Laws.


 


The Company covenants
that (to the extent that it may lawfully do so) it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or any other law
wherever enacted, now or at any time hereafter in force, which would prohibit
or forgive the Company from paying all or any portion of the principal of or
premium, if any, or interest, if any, on or Additional Amounts, if any, with
respect to any Securities as contemplated herein and therein or which may
affect the covenants or the performance of this Indenture or the Securities;
and the Company (to the extent that it may lawfully do so) expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee or the
Holders, but will suffer and permit the execution of every such power as though
no such law had been enacted.


 


Section 515.                                Undertaking
for Costs.


 


All parties to this
Indenture agree, and each Holder of any Security by his 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


 


50

















 


for any action
taken or omitted to be taken by it as Trustee, the filing by any party litigant
in such suit of any undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and disbursements, 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 515 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on or Additional Amounts, if any,
with respect to any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date, and, in the case of repayment at the option of the Holder
pursuant to Article Thirteen hereof, on or after the date for repayment)
or for the enforcement of the right, if any, to convert or exchange any
Security into Common Shares or other securities in accordance with its terms.


 


ARTICLE SIX




THE TRUSTEE


 


Section 601.                                Certain
Rights of Trustee.


 


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


 


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


 


(2)                                  any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or a Company Order (in each case, other than
delivery of any Security, together with any Coupons appertaining thereto, to
the Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;


 


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


 


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


 


51














 


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


 


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


 


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


 


Section 602.                                Notice of
Defaults.


 


Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of such
series entitled to receive reports pursuant to Section 703(3), notice of
such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any), or interest, if any,
on, or Additional Amounts or any sinking fund installment with respect to, any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interest of
the Holders of Securities and Coupons of such series; and provided,
further, that in the case of any default of the character specified
in Section 501(5) or 501(11) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.


 


Section 603.                                Not
Responsible for Recitals or Issuance of Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificate of
authentication, and in any Coupons shall be taken as the statements of the
Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities or the
Coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and


 


52

















 


that the
statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of the Securities or the proceeds
thereof.


 


Section 604.                                May Hold
Securities.


 


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


 


Section 605.                                Money Held
in Trust.


 


Except as provided in Section 403
and Section 1003, money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law and shall be
held uninvested. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.


 


Section 606.                                Compensation
and Reimbursement.


 


The Company agrees:


 


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


 


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


 


(3)                                  to
indemnify the Trustee and its agents for, and to hold them harmless against,
any loss, liability or reasonable expense (including, without limitation, the
reasonable fees and disbursements of the Trustee’s agents, legal counsel,
accountants and experts) incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder, except to
the extent that any such loss, liability or expense was due to the Trustee’s
negligence or bad faith.


 


As security for the
performance of the obligations of the Company under this Section, the Trustee
shall have a lien prior to the Securities of any series upon all property and
funds held or


 


53

















 


collected by the
Trustee as such, except funds held in trust for the payment of principal of, or
premium or interest on or any Additional Amounts with respect to Securities or
any Coupons appertaining thereto.


 


Any compensation or
expense incurred by the Trustee after a default specified by Section 501(8),
(9) or (10) is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. “Trustee” for purposes
of this Section 606 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 606. The provisions of this Section 606
shall, to the extent permitted by law, survive any termination of this
Indenture (including, without limitation, termination pursuant to any
Bankruptcy Laws) and the resignation or removal of the Trustee.


 


Section 607.                                Corporate
Trustee Required; Eligibility.


 


(1)                                  There
shall at all times be a Trustee hereunder that is a Corporation, organized and
doing business under the laws of the United States of America, any state
thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act and that has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of
at least $50,000,000 subject to supervision or examination by Federal or state
authority. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.


 


(2)                                  The
following indenture shall be considered specifically described herein for
purposes of clause (i) of the proviso contained in Section 310(b)(1) of
the Trust Indenture Act: Indenture dated as of ·
between the Company and ·, as trustee; and,
pursuant to Section 310(b)(1)(C)(i) of the Trust Indenture Act,
unless otherwise ordered by the Commission, an Event of Default or default by
the Company under this Indenture will not disqualify the Trustee under this Indenture
because it is a trustee under such other indenture.


 


Section 608.                                Resignation
and Removal; Appointment of Successor.


 


(1)                                  No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee pursuant to Section 609.


 


(2)                                  The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 609 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.


 


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


 


(4)                                  If
at any time:


 


54

















 


(a)                                  the
Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of
the Trust Indenture Act with respect to Securities of any series after written
request therefor by the Company or any Holder of a Security of such series who
has been a bona fide Holder of a Security of such series for at least six
months, or


 


(b)                                 the
Trustee shall cease to be eligible under Section 607 and shall fail to
resign after written request therefor by the Company or any such Holder, or


 


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


 


then, in any such case, (i) the
Company, by or pursuant to a Board Resolution, may remove the Trustee with
respect to all Securities or the Securities of such series, or (ii) subject
to Section 315(e) of the Trust Indenture Act, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.


 


(5)                                  If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 609, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner required by Section 609,
any Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.


 


(6)                                  The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as


 


55

















 


Bearer Securities, by publishing notice of such event
once in an Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.


 


Section 609.                                Acceptance
of Appointment by Successor.


 


(1)                                  Upon
the appointment hereunder of any successor Trustee with respect to all
Securities, such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and 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 hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to Section 1003,
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.


 


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


 


56

















 


and subject to Section 1003 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, subject to its claim,
if any, provided for in Section 606.


 


(3)                                  Upon
request of any Person appointed hereunder as a 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 (1) or (2) of this Section, as the case may
be.


 


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


 


Section 610.                                Merger,
Conversion, Consolidation or Succession to Business.


 


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


 


Section 611.                                Appointment
of Authenticating Agent.


 


The Trustee may appoint
one or more Authenticating Agents acceptable to the Company with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original
issue, exchange, registration of transfer, partial redemption, partial
repayment, partial conversion or exchange for Common Shares or other securities
or property, or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.


 


Each Authenticating Agent
shall be acceptable to the Company and, except as provided in or pursuant to
this Indenture, shall at all times be a Corporation that would be permitted by
the Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act,


 


57

















 


is authorized
under applicable law and by its charter to act as an Authenticating Agent and
has a combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.


 


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


 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and the
Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall (i) mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Registered Securities, if
any, of the series with respect to which such Authenticating Agent shall serve,
as their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issued as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place where
such successor Authenticating Agent has its principal office if such office is
located outside the United States. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.


 


The Company agrees to pay
each Authenticating Agent from time to time reasonable compensation for its
services under this Section. If the Trustee makes such payments, it shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 606.


 


The provisions of
Sections 308, 603 and 604 shall be applicable to each Authenticating Agent.


 


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


 


58

















 


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


 


	
   

  	
  ·,

  	
   

  
	
   

  	
   

  	
       As
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


If all of the Securities
of any series may not be originally issued at one time, and if the Trustee does
not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
in writing (which writing need not be accompanied by or contained in an
Officers’ Certificate of the Company), shall appoint in accordance with this Section an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.


 


ARTICLE SEVEN




HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 701.                                Company to
Furnish Trustee Names and Addresses of Holders.


 


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


 


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


 


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


 


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


 


59

















 


Section 702.                                Preservation
of Information; Communications to Holders.


 


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


 


Every Holder of
Securities or Coupons, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company, the Trustee, any Paying Agent
or any Security Registrar shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders of
Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust
Indenture Act.


 


Section 703.                                Reports by
Trustee.


 


(1)                                  Within
60 days after May 15 of each year commencing with the first May 15
following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee
shall transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such May 15 with respect to any of the
events specified in said Sections 313(a) and 313(b)(2) which may have
occurred since the later of the immediately preceding May 15 and the date
of this Indenture.


 


(2)                                  The
Trustee shall transmit the reports required by Section 313(a) of the
Trust Indenture Act at the times specified therein.


 


(3)                                  Reports
pursuant to this Section shall be transmitted in the manner and to the
Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.


 


Section 704.                                Reports by
Company.


 


The Company, pursuant to Section 314(a) of
the Trust Indenture Act, shall:


 


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


 


(2)                                  file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions


 


60

















 


and covenants of this Indenture as may be required from time to time by
such rules and regulations; and


 


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


 


ARTICLE EIGHT




CONSOLIDATION, MERGER AND SALES


 


Section 801.                                Company May Consolidate,
Etc., Only on Certain Terms.


 


The Company shall not, in
any transaction or series of related transactions, consolidate with, or sell,
lease or convey all or substantially all of its property and assets to, or
merge with or into, any Person unless:


 


(1)                                  either
(A) the Company shall be the continuing Person (in the case of a merger)
or (B) the successor Person (if other than the Company) formed by or
resulting from the consolidation or merger or which shall have received the
transfer of assets shall be an entity organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia and
shall expressly assume the due and punctual payment of the principal of,
premium, if any, and interest, if any, on, and Additional Amounts, if any, with
respect to, all Securities Outstanding under this Indenture and the due and
punctual performance and observance of all covenants and conditions in such
Outstanding Securities and this Indenture to be performed or satisfied by the
Company (including, without limitation, the obligation to convert or exchange
any Securities that are convertible into or exchangeable for other securities
or property in accordance with the provisions of such Securities and this
Indenture) by a supplemental indenture reasonably satisfactory in form to the
Trustee;


 


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


 


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


 


61














 


Section 802.                                Successor
Person Substituted for Company.


 


In the case of any such
consolidation, sale, lease, conveyance or merger in which the Company is not
the continuing entity and upon execution and delivery by the successor Person
of the supplemental indenture described in Section 801, such successor
Person shall succeed to, and be substituted for, the Company and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and the
predecessor Company shall be automatically released and discharged from all
obligations and covenants under this Indenture, the Securities and the Coupons.


 


ARTICLE NINE




SUPPLEMENTAL INDENTURES


 


Section 901.                                Supplemental
Indentures without Consent of Holders.


 


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


 


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


 


(2)                                  to
add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (as shall be specified in such supplemental indenture
or indentures) or to surrender any right or power herein conferred upon the
Company with respect to all or any series of Securities issued under this
Indenture (as shall be specified in such supplemental indenture or indentures);
or


 


(3)                                  to
add to or change any of the provisions of this Indenture to facilitate the
issuance of Bearer Securities, to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any restrictions on the
payment of principal of, any premium or interest on or any Additional Amounts
with respect to Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be exchanged
for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated or global form,
provided any such action shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto; or


 


(4)                                  to
establish the form or terms of Securities of any series and any Coupons appertaining
thereto as permitted by Sections 201 and 301, including, without limitation,
any conversion or exchange provisions applicable to Securities which are
convertible into or exchangeable for other securities or property, and to make
any deletions from or additions or changes to this Indenture in connection with
any matters referred to in this


 


62

















 


clause (4) (provided that any such deletions, additions and
changes shall not be applicable to any other series of Securities then
Outstanding); or


 


(5)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 609; or


 


(6)                                  to
cure any ambiguity or to correct or supplement any provision herein which may
be defective or which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons appertaining thereto
in any material respect; or


 


(7)                                  to
add any additional Events of Default with respect to all or any series of
Securities (as shall be specified in such supplemental indenture); or


 


(8)                                  to
supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance, covenant defeasance and/or
satisfaction and discharge of any series of Securities pursuant to Article Four,
provided that any such action shall not
adversely affect the interests of any Holder of a Security of such series and
any Coupons appertaining thereto or any other Security or Coupon in any
material respect; or


 


(9)                                  to
add guarantees or guarantors in respect of all or any Securities under this
Indenture, and to evidence the release and discharge of any guarantor from its
obligations under its guarantee of any or all Securities and its obligations
under this Indenture in respect of any or all Securities in accordance with the
terms of this Indenture;


 


(10)                            to
secure or, if applicable, to provide additional security for all or any
Securities issued under this Indenture and all or any guarantees, if any, of
all or any such Securities and to provide for any and all matters relating
thereto, and to provide for the release of any collateral as security for all
or any Securities or all or any guarantees, if any, of all or any Securities in
accordance with the terms of this Indenture; or


 


(11)                            to
make any change in this Indenture or any Securities to conform the terms
thereof to the terms reflected in any prospectus, prospectus supplement,
offering memorandum or similar offering document used in connection with the
initial offering or sale of any Securities; or


 


(12)                            in
the case of any series of Securities which are convertible into or exchangeable
for Common Shares or other securities or property, to safeguard or provide for
the conversion or exchange rights, as the case may be, of such Securities in
the event of any reclassification or change of outstanding Common Shares (or
any other securities of the Company into which such Securities are convertible
or for which such Securities are exchangeable), or in the event of any merger,
consolidation, statutory share exchange


 


63

















 


or combination of the Company with or into another Person or any sale,
lease, assignment, transfer, disposition or other conveyance of all or
substantially all of the properties and assets of the Company to any other
Person or other similar transactions, if expressly required by the terms of
such series of Securities established pursuant to Section 301; or


 


(13)                            to
amend or supplement any provision contained herein, in any supplemental
indenture or in any Securities (which amendment or supplement may apply to one
or more series of Securities or to one or more Securities within any series as
specified in such supplemental indenture), provided that
such amendment or supplement does not apply to any Outstanding Security issued
prior to the date of such supplemental indenture and entitled to the benefits
of such provision.


 


Section 902.                                Supplemental
Indentures with Consent of Holders.


 


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


 


(1)                                  change
the Stated Maturity of the principal of, or premium, if any, or any installment
of interest, if any, on, or any Additional Amounts, if any, with respect to,
any Security, or reduce the principal amount thereof or the premium, if any,
thereon or the rate (or modify the calculation of such rate) of interest
thereon, or reduce the amount payable upon redemption thereof, whether such
redemption is mandatory or at the option of the Company, or upon repayment
thereof at the option of the Holder, or reduce any Additional Amounts payable
with respect thereto, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of any
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of Payment where or
the Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date or, in the case of repayment pursuant to Article Thirteen at the
option of the Holder, on or after the date for repayment) in each case as such
Stated Maturity, Redemption Date or date for repayment may, if applicable, be
extended in accordance with the terms of such Security or any Coupon
appertaining thereto, or in the case of any Security which is convertible


 


64

















 


into or exchangeable for other securities or property, impair the right
to institute suit to enforce the right to convert or exchange such Security in
accordance with its terms, or


 


(2)                                  reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in Section 513 or 1006 of this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or


 


(3)                                  make
any change that adversely affects the right, if any, to convert or exchange any
Security for Common Shares or other securities or property in accordance with
its terms, or


 


(4)                                  modify
any of the provisions of this Section, Section 513 or Section 1006,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby.


 


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


 


Anything in this
Indenture to the contrary notwithstanding, if more than one series of
Securities is Outstanding, the Company shall be entitled to enter into a
supplemental indenture under this Section 902 with respect to any one or
more series of Outstanding Securities without entering into a supplemental
indenture with respect to any other series of Outstanding Securities.


 


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


 


Section 903.                                Execution of
Supplemental Indentures.


 


As a condition to
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trust created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Officers’ Certificate to the
effect that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that such supplemental indenture has been duly
authorized, executed and delivered by, and is a valid, binding and enforceable
obligation of, the Company, subject to customary exceptions. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


65

















 


Section 904.                                Effect of
Supplemental Indentures.


 


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


 


Section 905.                                Reference in
Securities to Supplemental Indentures.


 


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


 


Section 906.                                Conformity
with Trust Indenture Act.


 


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


 


ARTICLE TEN




COVENANTS


 


Section 1001.                          Payment of
Principal, Premium, Interest and Additional Amounts.


 


The Company covenants and
agrees for the benefit of the Holders of the Securities of each series that it
will duly and punctually pay the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities of such series, whether
payable in cash, Common Shares or other securities or property, in accordance
with the terms thereof, any Coupons appertaining thereto and this Indenture.
Any interest due on any Bearer Security on or before the Maturity thereof, and
any Additional Amounts payable with respect to such interest, shall be payable
only upon presentation and surrender of the Coupons appertaining thereto for
such interest as they severally mature.


 


Section 1002.                          Maintenance
of Office or Agency.


 


The Company shall
maintain in each Place of Payment for any series of Securities an Office or
Agency where Securities of such series (but not Bearer Securities, except as
otherwise provided below, unless such Place of Payment is located outside the
United States) may be presented or surrendered for payment, where Securities of
such series may be surrendered for registration of transfer or exchange, where
Securities of such series that are convertible or exchangeable may be
surrendered for conversion or exchange, and where notices and demands to or
upon the Company in respect of the Securities of such series relating thereto
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company


 


66

















 


shall maintain,
subject to any laws or regulations applicable thereto, an Office or Agency in a
Place of Payment for such series which is located outside the United States
where Securities of such series and any Coupons appertaining thereto may be
presented and surrendered for payment; provided, however,
that if the Securities of such series are listed on any stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in a city located outside the United States
required by such stock exchange, so long as the Securities of such series are
listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Company shall fail to maintain any such required
Office or Agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, except that Bearer Securities of
such series and any Coupons appertaining thereto may be presented and
surrendered for payment at the place specified for the purpose with respect to
such Securities as provided in or pursuant to this Indenture, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.


 


Except as otherwise
provided in or pursuant to this Indenture, no payment of principal, premium,
interest or Additional Amounts with respect to Bearer Securities shall be made
at any Office or Agency in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however,
if amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
United States designated for such purpose, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions (in which case the Company shall so
notify the Trustee in writing).


 


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


 


Unless otherwise provided
in or pursuant to this Indenture (including, without limitation, pursuant to Section 301
with respect to the Securities of any series), the Company hereby designates
the place where the Trustee shall from time to time maintain its Corporate
Trust Office as the Company’s Office or Agency for such purpose and initially
appoints the Trustee as the  Security
Registrar for each series of Securities and, if the Securities of any series
are convertible into or exchangeable for Common Shares or other securities or
property, initially appoints the Trustee as conversion or exchange agent, as
the case may be, for the Securities of such series. The Company may
subsequently appoint a different or additional Office or Agency and, as
provided in Section 305, may remove and replace from time to time the
Security Registrar.


 


67

















 


Section 1003.                          Money for
Securities Payments to Be Held in Trust.


 


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


 


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


 


The Company shall cause
each Paying Agent for any series of Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:


 


(1)                                  hold
all sums held by it for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to Securities of such series
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as provided in or pursuant to
this Indenture;


 


(2)                                  give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any payment of principal, any
premium or interest on or any Additional Amounts with respect to the Securities
of such series; and


 


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


 


To the extent that
the terms of any Securities established pursuant to Section 301 provide
that any principal of, or premium or interest, if any, on or any Additional
Amounts with respect to any such Securities is or may be payable in Common
Shares or other securities or property, then the provisions of this Section 1003
shall apply, mutatis mutandis, to such Common Shares or
other securities or property.


 


The Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same terms as those
upon which such sums were


 


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held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.


 


Except as otherwise
provided herein or pursuant hereto, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, any premium or interest on or any Additional Amounts with respect
to any Security of any series or any Coupon appertaining thereto and remaining
unclaimed for two years after such principal or such premium or interest or
Additional Amount shall have become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any Coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may, not later than 30 days after the Company’s request for such
repayment, at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed
to Holders of Registered Securities of such series, or both, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing nor shall
it be earlier than two years after such principal and any premium or interest
or Additional Amounts shall have become due and payable, any unclaimed balance
of such money then remaining will be repaid to the Company.


 


Section 1004.                          Additional
Amounts.


 


If any Securities of a
series provide for the payment of Additional Amounts by the Company, the
Company agrees to pay to the Holder of any such Security or any Coupon
appertaining thereto Additional Amounts as provided in or pursuant to this
Indenture or such Securities. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or any premium or interest on, or
in respect of, any Security of any series or any Coupon, such mention shall be
deemed to include mention of the payment of Additional Amounts provided by the
terms of such series established hereby or pursuant hereto to the extent that,
in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.


 


Section 1005.                          Legal
Existence.


 


Subject to Article Eight,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its legal existence as any type of Corporation
(it being understood that nothing in this Section 1005 shall prohibit the
Company from changing its legal form from one type of Corporation to another
type of Corporation).


 


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Section 1006.                          Waiver of
Certain Covenants.


 


The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 801, 802, 1002, 1003 or 1005 with respect to the Securities
of any series and, if expressly provided pursuant to Section 301 with
respect to the Securities of such series, any additional covenants applicable
to the Securities of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.


 


Section 1007.                          Company
Statement as to Compliance.


 


The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
statement (which need not be contained in or accompanied by an Officers’
Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, stating whether or
not, to the best of his or her knowledge, the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to notice requirements or periods of grace) and
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which he or she may have knowledge.


 


ARTICLE ELEVEN




REDEMPTION OF SECURITIES


 


Section 1101.                          Applicability
of Article.


 


Redemption of Securities
of any series at the option of the Company as permitted or required by the
terms of such Securities shall be made in accordance with the terms of such
Securities and (except as otherwise provided herein or pursuant hereto) this
Article.


 


Section 1102.                          Election to
Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed
and, in the event that the Company shall determine that the Securities of any
series to be redeemed shall be selected from Securities of such series having
the same issue date, interest rate or interest rate formula, Stated Maturity
and other terms (the “Equivalent Terms”), the Company shall notify the Trustee
of such Equivalent Terms.


 


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In the case of any
redemption of Securities (A) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture or (B) pursuant to an election of the Company which is subject
to a condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
evidencing compliance with such restriction or condition.


 


Section 1103.                          Selection by
Trustee of Securities to be Redeemed.


 


If less than all of the
Securities of any series are to be redeemed or if less than all of the
Securities of any series with Equivalent Terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series or from the Outstanding Securities of such series with Equivalent Terms,
as the case may be, not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions of the principal amount of Registered Securities of
such series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Security of such series not redeemed to less than the minimum denomination for
a Security of such series established herein or pursuant hereto.


 


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


 


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


 


Unless otherwise
specified in or pursuant to this Indenture or the Securities of any series or
in a notice of redemption, if any Security selected for partial redemption is
converted or exchanged for Common Shares or other securities or property in
part before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.


 


Section 1104.                          Notice of
Redemption.


 


Notice of redemption
shall be given in the manner provided in Section 106, not less than 30 nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified in the Securities to be redeemed, to the Holders of Securities to be
redeemed. Failure to give notice by mailing in the manner herein provided to
the Holder of any Registered Securities designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other Securities or
portions thereof.


 


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


 


All notices of redemption
shall state:


 


(1)           the
Redemption Date,


 


(2)           the
Redemption Price or, if applicable, the manner in which the Redemption Price
will be determined,


 


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


 


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


 


(5)           that,
on the Redemption Date, the Redemption Price shall become due and payable upon
each such Security or portion thereof to be redeemed, together (if applicable)
with accrued and unpaid interest, if any, thereon (subject, if applicable, to
the provisos to the first paragraph of Section 1106), and, if applicable,
that interest thereon shall cease to accrue on and after said date,


 


(6)           the
place or places where such Securities, together (in the case of Bearer
Securities) with all Coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price and
any accrued interest and Additional Amounts pertaining thereto,


 


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


 


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


 


(9)           if
Bearer Securities of any series are to be redeemed and any Registered
Securities of such series are not to be redeemed, and if such Bearer Securities
may be exchanged for Registered Securities not subject to redemption on the
Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,


 


(10)         in
the case of Securities of any series that are convertible or exchangeable into
Common Shares or other securities or property, the then current conversion or
exchange price or rate, the date or dates on which the right to convert or
exchange the


 


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principal of the
Securities of such series to be redeemed will commence or terminate, as
applicable, and the place or places where and the Persons to whom such
Securities may be surrendered for conversion or exchange,


 


(11)         the
CUSIP number of such Securities, if any, and


 


(12)         if
the Redemption Price or any portion thereof shall be payable, at the option of
the Company, in cash or in Common Shares or other securities or property (or a
combination thereof), a statement as to whether the Company has elected to pay
the Redemption Price in cash or Common Shares or other securities or property
or a combination thereof and, if applicable, the portion of the Redemption
Price that is to be paid in cash, Common Shares or other securities or
property.


 


A notice of redemption
published as contemplated by Section 106 need not identify particular
Registered Securities to be redeemed.


 


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


 


Section 1105.                          Deposit of
Redemption Price.


 


On or prior to any
Redemption Date, the Company shall deposit, with respect to the Securities of
any series called for redemption pursuant to Section 1104, with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the applicable Currency or, if the Redemption Price shall be
payable in cash, securities and/or other property, an amount of money in the
applicable Currency, securities and/or other property, as the case may be,
sufficient to pay the Redemption Price of, and (unless otherwise specified
pursuant to Section 301 with respect to the Securities of such series) any
accrued interest on, all such Securities or portions thereof which are to be
redeemed on that date, except that, if the Securities of such series are
convertible or exchangeable into Common Shares or other securities or property,
no such deposit shall be required (unless otherwise specified pursuant to Section 301
with respect to the Securities of such series) with respect to any such
Securities (or portions thereof) which have been converted or exchanged prior
to such Redemption Date.


 


Section 1106.                          Securities
Payable on Redemption Date.


 


Notice of redemption
having been given as aforesaid, the Securities so to be redeemed (except, in
the case of Securities which are convertible or exchangeable into Common Shares
or other securities or property, any such Securities which shall have been so converted
or exchanged prior to the applicable Redemption Date) shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified,
together with (unless otherwise provided with respect to the Securities of such
series pursuant to Section 301) accrued and unpaid interest, if any,
thereon and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest, if any) such Securities
shall cease to bear interest and the Coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Security for redemption in


 


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accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with,
unless otherwise provided in or pursuant to this Indenture, any accrued and unpaid
interest thereon and Additional Amounts with respect thereto to but excluding
the Redemption Date; provided, however,
that, except as otherwise provided in or pursuant to this Indenture or the
Bearer Securities of such series, 
installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided, further, that, except as otherwise specified in or
pursuant to this Indenture or the Registered Securities of such series,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the Regular Record Dates therefor according to their terms
and the provisions of Section 307.


 


If any Bearer Security
surrendered for redemption shall not be accompanied by all appurtenant Coupons
maturing after the Redemption Date, such Security may be paid after deducting
from the Redemption Price or, at the option of the Company, after payment to
the Trustee for the benefit of the Company of, an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless from and against any and all loss, liability or
expense. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however,
that any interest or Additional Amounts represented by Coupons shall be payable
only upon presentation and surrender of those Coupons at an Office or Agency
for such Security located outside of the United States except as otherwise
provided in Section 1002.


 


If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal and any premium, until paid, shall bear interest from the Redemption
Date at the rate prescribed therefor in the Security or, if no rate is
prescribed therefor in the Security, at the rate of interest, if any, borne by
such Security.


 


Section 1107.                          Securities
Redeemed in Part.


 


Any Registered Security
which is to be redeemed only in part shall be surrendered at any Office or
Agency for such Security (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Registered Security or Securities of the same series, containing
identical terms and provisions, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in global form is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depository for such


 


74

















 


Security in global form as shall be specified in the
Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.


 


ARTICLE TWELVE


 


SINKING FUNDS


 


Section 1201.                          Applicability
of Article.


 


The provisions of this Article shall
be applicable to any sinking fund for the retirement of Securities of a series,
except as otherwise permitted or required in or pursuant to this Indenture or
any Security of such series issued pursuant to this Indenture.


 


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 such
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 1202. 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 and this
Indenture.


 


Section 1202.                          Satisfaction
of Sinking Fund Payments with Securities.


 


The Company may, in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of any series to be made pursuant to the terms of such Securities (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of
such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, 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. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section 1202,
the principal amount of Securities of such series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request
of the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that series purchased by the


 


75

















 


Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.


 


Section 1203.                          Redemption
of Securities for Sinking Fund.


 


Not less than 75 days
prior to each sinking fund payment date for any series of Securities, the
Company shall deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that series pursuant to Section 1202,
and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so credited and not theretofore delivered. If such Officers’
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 60 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 1103
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 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.


 


ARTICLE THIRTEEN


 


REPAYMENT AT THE OPTION OF HOLDERS


 


Section 1301.                          Applicability
of Article.


 


Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with the terms of the Securities of such
series. The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their Stated
Maturity, for purposes of Section 309, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the
same to the Trustee with a directive that such Securities be cancelled.
Notwithstanding anything to the contrary contained in this Section 1301,
in connection with any repayment of Securities, the Company may arrange for the
purchase of any Securities by an agreement with one or more investment bankers
or other purchasers to purchase such Securities by paying to the Holders of
such Securities on or before the applicable repayment date an amount not less
than the repayment price payable by the Company on repayment of such
Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.


 


Unless otherwise
expressly stated in this Indenture or pursuant to Section 301 with respect
to the Securities of any series or unless the context otherwise requires, all
references in this Indenture to the repayment of Securities at the option of
the Holders thereof (and all


 


76

















 


references of like import) shall be deemed to include
a reference to the repurchase or redemption of Securities at the option of the
Holders thereof.


 


ARTICLE FOURTEEN


 


SECURITIES IN FOREIGN CURRENCIES


 


Section 1401.                          Applicability
of Article.


 


Whenever this Indenture
provides for (i) any action by, or the determination of any of the rights
of, Holders of Securities of any series in which not all of such Securities are
denominated in the same Currency or (ii) any distribution to Holders of
Securities of any series in which not all of such Securities are denominated in
the same Currency, in the absence of any provision to the contrary in or
pursuant to this Indenture or the Securities of such series, any amount in
respect of any Security denominated in a Currency other than Dollars shall be
treated for any such action, determination or distribution as that amount of
Dollars that could be obtained for such amount on such reasonable basis of
exchange and as of the record date with respect to Registered Securities of
such series (if any) for such action, determination or distribution (or, if
there shall be no applicable record date, such other date reasonably proximate
to the date of such distribution) as the Company may specify in a written
notice to the Trustee.


 


ARTICLE FIFTEEN


 


MEETINGS OF HOLDERS OF SECURITIES


 


Section 1501.                          Purposes for
Which Meetings May Be Called.


 


Unless otherwise provided
pursuant to Section 301 with respect to the Securities of any series, the
provisions of this Article Fifteen shall be applicable to a series of
Securities if (and only if) the terms of such Securities established pursuant
to Section 301 provide that the Securities of such series shall be issued
or issuable, in whole or in part, as Bearer Securities. A meeting of Holders of
Securities of any series issued or issuable, in whole or in part, as Bearer
Securities may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other Act provided by this Indenture to be made, given or
taken by Holders of Securities of such series.


 


Section 1502.                          Call, Notice
and Place of Meetings.


 


(1)           The Trustee may at any time call a
meeting of Holders of Securities of any series issued or issuable, in whole or
in part, as Bearer Securities, for any purpose specified in Section 1501,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York, or in London or in such place outside the United States as the
Company shall determine. Notice of every meeting of Holders of Securities of
any such series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.


 


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(2)           In case at any time the Company (by
or pursuant to a Board Resolution) or the Holders of at least 331/3% in principal amount of the Outstanding
Securities of any series issued or issuable, in whole or in part, as Bearer
Securities, shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after
receipt of such request (whichever shall be required pursuant to Section 106)
or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in clause (1) of this Section.


 


Section 1503.                          Persons
Entitled to Vote at Meetings.


 


To be entitled to vote at
any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.


 


Section 1504.                          Quorum;
Action.


 


The Persons entitled to
vote a majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting or duly reconvened meeting of Holders
of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be given by the Holders of a greater
percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to at least such greater percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes after the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1502(1),
except that such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.


 


Except as limited by the
proviso to Section 902, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid may be
adopted only by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding


 


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Securities of that series; provided,
however, that, except as limited by the proviso to Section 902,
any resolution with respect to any request, demand, authorization, direction,
notice, consent,  waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than or more than a majority,
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of such series.


 


Any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series and the Coupons appertaining thereto, whether or not
such Holders were present or represented at the meeting.


 


Section 1505.                          Determination
of Voting Rights; Conduct and Adjournment of Meetings.


 


(1)           Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of such series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed or guaranteed
by any trust company, bank or banker authorized by Section 104 to certify
to the holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 104 or other proof.


 


(2)           The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securities as provided
in Section 1502(2), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at
the meeting.


 


(3)           At any meeting, each Holder of a
Security of such series or proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. If the Securities of such
series are issuable in minimum denominations of less than $1,000, then a Holder
of such a Security in a principal amount of less than $1,000 shall be entitled
to a fraction of one vote which is equal to the fraction that the principal
amount of such Security bears to $1,000. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or proxy.


 


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(4)           Any meeting of Holders of Securities
of any series duly called pursuant to Section 1502 at which a quorum is
present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without
further notice.


 


Section 1506.                          Counting
Votes and Recording Action of Meetings.


 


The vote upon any
resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at
the meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.


 


ARTICLE SIXTEEN


 


SECURITY


 


Section 1601.                          Security.


 


If so provided pursuant
to Section 301 with respect to the Securities of any series, the
Securities of such series may be secured by such property, assets or other
collateral as may be specified in or pursuant to Section 301. Any and all
terms and provisions applicable to the security for the Securities of such
series shall also be provided in or pursuant to Section 301, which may
include, without limitation, provisions for the execution and delivery of such
security agreements, pledge agreements, collateral agreements and other similar
or related agreements as the Company may elect and which may provide for the Trustee
to act as collateral agent or in a similar or other capacity. The Trustee shall
comply with Sections 313(a)(5) and (6) and 313(b)(1) of the
Trust Indenture Act and the Company shall comply with Sections 314(b), 314(c) and
314(d) of the Trust Indenture Act, in each case in respect of any secured
Securities that may be outstanding hereunder from time to time.


 


*     *     *    
*     *


 


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


 


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


 


	
   

  	
  KKR FINANCIAL
  HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


	
   

  	
  ·,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  [SEAL]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


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