exv4w24






EXHIBIT 4.24




EXECUTION COPY




GSI COMMERCE, INC.




and


THE BANK OF NEW YORK MELLON,




as Trustee




SENIOR INDENTURE




Dated as of November 11, 2009




Providing for the Issuance of

Senior Debt Securities in Series




 









 





GSI COMMERCE, INC.




Reconciliation and Tie between Trust Indenture Act of 1939

and Indenture Provisions (1)




	 	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	 
	Section 310
	 	(a)(1)	 	 	6.09
	 
	 	(a)(2)	 	 	6.09
	 
	 	(a)(3)	 	Not Applicable
	 
	 	(a)(4)	 	Not Applicable
	 
	 	(a)(5)	 	 	6.09
	 
	 	(b)	 	 	6.08, 6.10
	Section 311
	 	(a)	 	 	6.13
	 
	 	(b)	 	 	6.13
	Section 312
	 	(a)	 	 	7.01, 7.02
	 
	 	(b)	 	 	7.02
	 
	 	(c)	 	 	7.02
	Section 313
	 	(a)	 	 	7.03
	 
	 	(b)	 	 	7.03
	 
	 	(c)	 	 	7.03
	 
	 	(d)	 	 	7.03
	Section 314
	 	(a)	 	 	7.04
	 
	 	(a)(4)	 	 	10.04
	 
	 	(b)	 	Not Applicable
	 
	 	(c)(1)	 	 	1.02
	 
	 	(c)(2)	 	 	1.02
	 
	 	(c)(3)	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	 	1.02






 









 






	 	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	Section 315
	 	(a)	 	 	6.01
	 
	 	(b)	 	 	6.02
	 
	 	(c)	 	 	6.01
	 
	 	(d)	 	 	6.01
	 
	 	(e)	 	 	5.14
	Section 316
	 	(a)	 	 	1.01
	 
	 	(a)(1)(A)	 	 	5.02, 5.12
	 
	 	(a)(1)(B)	 	 	5.13
	 
	 	(a)(2)	 	Not Applicable
	 
	 	(b)	 	 	5.08
	 
	 	(c)	 	 	1.04
	Section 317
	 	(a)(1)	 	 	5.03
	 
	 	(a)(2)	 	 	5.04
	 
	 	(b)	 	 	10.03
	Section 318
	 	(a)	 	 	1.07








 




			
	(1)	 	This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.




 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I
Definitions and Other Provisions of General Application

	 
	 	 	 	 	 	 
	SECTION 1.01
	 	Definitions	 	 	1	 
	SECTION 1.02
	 	Compliance Certificates and Opinions	 	 	7	 
	SECTION 1.03
	 	Form of Documents Delivered to Trustee	 	 	7	 
	SECTION 1.04
	 	Acts of Holders; Record Dates	 	 	8	 
	SECTION 1.05
	 	Notices, Etc., to Trustee and Company	 	 	10	 
	SECTION 1.06
	 	Notice to Holders; Waiver	 	 	10	 
	SECTION 1.07
	 	Conflict with Trust Indenture Act	 	 	11	 
	SECTION 1.08
	 	Effect of Headings and Table of Contents	 	 	11	 
	SECTION 1.09
	 	Successors and Assigns	 	 	11	 
	SECTION 1.10
	 	Separability Clause	 	 	11	 
	SECTION 1.11
	 	Benefits of Indenture	 	 	11	 
	SECTION 1.12
	 	Governing Law and Waiver of Jury Trial	 	 	11	 
	SECTION 1.13
	 	Legal Holidays	 	 	11	 
	SECTION 1.14
	 	Computations	 	 	12	 
	SECTION 1.15
	 	Counterparts; Facsimile	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE II
Security Forms

	 
	 	 	 	 	 	 
	SECTION 2.01
	 	Forms Generally	 	 	12	 
	SECTION 2.02
	 	Form of Legend for Global Securities	 	 	13	 
	SECTION 2.03
	 	Form of Trustee’s Certificate of Authentication	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE III
The Securities

	 
	 	 	 	 	 	 
	SECTION 3.01
	 	Creation of Securities in Amount Unlimited	 	 	14	 
	SECTION 3.02
	 	Documents Required for Issuance of Each Series of Securities	 	 	14	 
	SECTION 3.03
	 	Denominations	 	 	16	 
	SECTION 3.04
	 	Execution, Delivery, Dating and Authentication	 	 	16	 
	SECTION 3.05
	 	Temporary Securities	 	 	18	 
	SECTION 3.06
	 	Registration, Registration of Transfer and Exchange	 	 	19	 
	SECTION 3.07
	 	Mutilated, Destroyed, Lost and Stolen Securities	 	 	20	 
	SECTION 3.08
	 	Payment of Interest; Interest Rights Preserved	 	 	21	 
	SECTION 3.09
	 	Persons Deemed Owners	 	 	22	 
	SECTION 3.10
	 	Cancellation	 	 	22	 
	SECTION 3.11
	 	Computation of Interest	 	 	23	 
	SECTION 3.12
	 	Depository	 	 	23	 
	SECTION 3.13
	 	CUSIP Numbers	 	 	24	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE IV
Satisfaction and Discharge

	 
	 	 	 	 	 	 
	SECTION 4.01
	 	Satisfaction and Discharge of Indenture in Respect of any Series of Securities	 	 	24	 
	SECTION 4.02
	 	Application of Trust Money	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE V
Remedies

	 
	 	 	 	 	 	 
	SECTION 5.01
	 	Events of Default	 	 	25	 
	SECTION 5.02
	 	Acceleration of Maturity; Rescission and Annulment	 	 	27	 
	SECTION 5.03
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	28	 
	SECTION 5.04
	 	Trustee May File Proofs of Claim	 	 	28	 
	SECTION 5.05
	 	Trustee May Enforce Claims Without Possession of Securities	 	 	29	 
	SECTION 5.06
	 	Application of Money Collected	 	 	29	 
	SECTION 5.07
	 	Limitation on Suits	 	 	29	 
	SECTION 5.08
	 	Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	30	 
	SECTION 5.09
	 	Restoration of Rights and Remedies	 	 	30	 
	SECTION 5.10
	 	Rights and Remedies Cumulative	 	 	30	 
	SECTION 5.11
	 	Delay or Omission Not Waiver	 	 	31	 
	SECTION 5.12
	 	Control by Holders	 	 	31	 
	SECTION 5.13
	 	Waiver of Past Defaults	 	 	31	 
	SECTION 5.14
	 	Undertaking for Costs	 	 	32	 
	SECTION 5.15
	 	Waiver of Stay or Extension Laws	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE VI
The Trustee

	 
	 	 	 	 	 	 
	SECTION 6.01
	 	Certain Duties and Responsibilities	 	 	32	 
	SECTION 6.02
	 	Notice of Defaults	 	 	32	 
	SECTION 6.03
	 	Certain Rights of Trustee	 	 	33	 
	SECTION 6.04
	 	Not Responsible for Recitals or Issuance of Securities	 	 	34	 
	SECTION 6.05
	 	May Hold Securities	 	 	34	 
	SECTION 6.06
	 	Money Held in Trust	 	 	35	 
	SECTION 6.07
	 	Compensation and Reimbursement	 	 	35	 
	SECTION 6.08
	 	Disqualification; Conflicting Interests	 	 	35	 
	SECTION 6.09
	 	Corporate Trustee Required; Eligibility	 	 	36	 
	SECTION 6.10
	 	Resignation and Removal; Appointment of Successor	 	 	36	 
	SECTION 6.11
	 	Acceptance of Appointment by Successor	 	 	38	 
	SECTION 6.12
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	39	 
	SECTION 6.13
	 	Preferential Collection of Claims Against Company	 	 	39	 
	SECTION 6.14
	 	Appointment of Authenticating Agent	 	 	39	 






ii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE VII
Holders’ Lists and Reports by Trustee and Company

	 
	 	 	 	 	 	 
	SECTION 7.01
	 	Company to Furnish Trustee Names and Addresses of Holders	 	 	41	 
	SECTION 7.02
	 	Preservation of Information; Communications to Holders	 	 	41	 
	SECTION 7.03
	 	Reports by Trustee	 	 	42	 
	SECTION 7.04
	 	Reports by Company	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer

	 
	 	 	 	 	 	 
	SECTION 8.01
	 	Company May Consolidate, Etc., Only on Certain Terms	 	 	43	 
	SECTION 8.02
	 	Successor Corporation Substituted	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE IX
Supplemental Indentures

	 
	 	 	 	 	 	 
	SECTION 9.01
	 	Supplemental Indentures Without Consent of Holders	 	 	44	 
	SECTION 9.02
	 	Supplemental Indentures with Consent of Holders	 	 	45	 
	SECTION 9.03
	 	Execution of Supplemental Indentures	 	 	46	 
	SECTION 9.04
	 	Effect of Supplemental Indentures	 	 	46	 
	SECTION 9.05
	 	Conformity with Trust Indenture Act	 	 	46	 
	SECTION 9.06
	 	Reference in Securities to Supplemental Indentures	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE X
Covenants

	 
	 	 	 	 	 	 
	SECTION 10.01
	 	Payment of Principal, Premium and Interest	 	 	47	 
	SECTION 10.02
	 	Maintenance of Office or Agency	 	 	47	 
	SECTION 10.03
	 	Money for Securities Payments to be Held in Trust	 	 	48	 
	SECTION 10.04
	 	Statement by Officers as to Default	 	 	49	 
	SECTION 10.05
	 	Waiver of Certain Covenants	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE XI
Redemption of Securities

	 
	 	 	 	 	 	 
	SECTION 11.01
	 	Applicability of Article	 	 	50	 
	SECTION 11.02
	 	Election to Redeem; Notice to Trustee	 	 	50	 
	SECTION 11.03
	 	Selection by Trustee of Securities to be Redeemed	 	 	50	 
	SECTION 11.04
	 	Notice of Redemption	 	 	50	 
	SECTION 11.05
	 	Deposit of Redemption Price	 	 	51	 
	SECTION 11.06
	 	Securities Payable on Redemption Date	 	 	52	 
	SECTION 11.07
	 	Securities Redeemed in Part	 	 	52	 






iii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE XII
Sinking Funds

	 
	 	 	 	 	 	 
	SECTION 12.01
	 	Applicability of Article	 	 	52	 
	SECTION 12.02
	 	Satisfaction of Sinking Fund Payments with Securities	 	 	53	 
	SECTION 12.03
	 	Redemption of Securities for Sinking Fund	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE XIII
Defeasance and Covenant Defeasance

	 
	 	 	 	 	 	 
	SECTION 13.01
	 	Company’s Option to Effect Defeasance or Covenant Defeasance	 	 	53	 
	SECTION 13.02
	 	Defeasance and Discharge	 	 	53	 
	SECTION 13.03
	 	Covenant Defeasance	 	 	54	 
	SECTION 13.04
	 	Conditions to Defeasance or Covenant Defeasance	 	 	54	 
	SECTION 13.05
	 	Deposited Money or U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions 	 	 	55	 
	SECTION 13.06
	 	Reinstatement	 	 	56	 






iv 









 






     SENIOR INDENTURE, dated as of November 11, 2009, between GSI Commerce, Inc., a Delaware
corporation (the “Company”), and The Bank of New York Mellon, a New York banking
corporation, as trustee hereunder (the “Trustee”).



RECITALS OF THE COMPANY




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured senior debentures, notes or other evidences of
indebtedness (the “Securities”), to be issued in one or more series as provided in this Indenture.



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE I

Definitions and Other Provisions of General Application




     SECTION 1.01 Definitions. For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:



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



     (b) 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;



     (c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term “generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted in
the United States of America at the date of such computation; and



     (d) the words “herein”, “hereinafter”, “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision. Certain terms, used principally within an Article of this Indenture, may be defined in
that Article.



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



     “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
6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.



     “Board of Directors” means the board of directors of the Company or any duly
authorized committee of that board.



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



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



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



     “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.



     “Company Request” or “Company Order” means a written request or order signed
in the name of the Company by one of its officers and delivered to the Trustee.



     “Corporate Trust Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, which office at the
date hereof is 101 Barclay Street, Floor 8 West, New York, New York 10286, except that with respect
to the presentation of Securities for payment or for registration of transfer and exchange, such
term shall mean the office or the agency of the Trustee designated for such purpose.



     “Corporation” includes corporations, associations, companies (including limited
liability companies) and business trusts.



     “Covenant Defeasance” has the meaning specified in Section 13.03.



     “Defaulted Interest” has the meaning specified in Section 3.08(b).



     “Defeasance” has the meaning specified in Section 13.02.



2









 





     “Depository” means the clearing agency registered under the Exchange Act that is
designated by the Company to act as depository for any series of Securities (or any successor to
such clearing agency).



     “Dollar” means the currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.



     “Event of Default” has the meaning specified in Section 5.01.



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



     “Expiration Date” has the meaning specified in Section 1.04.



     “Global Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.02 (or such legend as may be specified as
contemplated by Section 3.02 for such Securities).



     “Holder” or “holder” means a Person in whose name at the time a particular
Security is registered in the Security Register.



     “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, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 3.02.



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



     “Interest Rate” means the rate of interest specified or determined as specified in
each Security as being the rate of interest payable on such Security.



     “Investment Company Act” means the Investment Company Act of 1940 and any statute
successor thereto, in each case as amended from time to time.



     “Lien” means any mortgage, pledge, security interest or lien or other encumbrance of
any nature whatsoever.



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



     “Notice of Default” means a written notice of the kind specified in Section 5.01(iv).



3









 





     “Officer’s Certificate” means a certificate signed by an officer of the Company, and
delivered to the Trustee. Each such Officer’s Certificate shall contain the statements provided in
Section 1.02 if and to the extent required by the provisions of such Section.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an
employee of the Company and who shall be acceptable to the Trustee. Each Opinion of Counsel shall
contain the statements provided in Section 1.02 if and to the extent required by the provisions of
such Section.



     “Original Issue Date” means the date of issuance specified as such in each Security.



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



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



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




          (ii) Securities for whose payment or redemption money in the necessary amount and in the
required currency or currency unit has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been made;




          (iii) Securities as to which Defeasance has been effected pursuant to Section 13.02; and




          (iv) Securities which have been paid pursuant to Section 3.07 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of the Outstanding Securities
have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which
would be due and payable as of such date upon acceleration of the Maturity thereof to such date
pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such Security which shall be
deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section
3.02, (C) the principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the




4









 







Dollar equivalent, determined as of such date in the manner provided as contemplated by
Section 3.02, of the principal amount of such Security (or, in the case of a Security described in
clause (A) or (B) above, of the amount determined as provided in such clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.




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



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



     “Place of Payment”, when used with respect to the Securities of any series, means the
place or places where the principal of (and premium, if any) and interest, if any, on the
Securities of that series are payable as specified in accordance with Section 3.02.



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



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



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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as contemplated by Section 3.02,
which date shall be, unless otherwise specified pursuant to Section 3.02, the fifteenth day
preceding such Interest Payment Date, whether or not such day shall be a Business Day.



     “Responsible Trust Officer”, when used with respect to the Trustee, means any officer
of the Trustee who shall have direct responsibility for the administration of this Indenture and
also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject.



5









 





     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.



     “Security Register” has the meaning specified in Section 3.06(a).



     “Security Registrar” means the Person appointed as the initial Security Registrar in
Section 3.06(a) or any Person appointed by the Company as a successor or replacement Security
Registrar.



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



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



     “Subsidiary” means any entity of which at the time of determination the Company and/or
one or more other Subsidiaries owns or controls directly or indirectly more than 50% of the shares
of Voting Stock.



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



     “Trust Indenture Act” means the Trust Indenture Act of 1939 and any statute successor
thereto, in each case as amended from time to time.



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



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



6









 





     “Vice President”, when used with respect to 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”.



     “Voting Stock” means stock of a Corporation of the class or classes having general
voting power under ordinary circumstances in the election of directors, managers or trustees of
such Corporation (irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any contingency).



     SECTION 1.02 Compliance Certificates and Opinions. (a) 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 such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate and opinion shall be given in the form of an Officer’s
Certificate, if to be given by an officer of the Company, and an Opinion of Counsel, if to be given
by counsel, and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture. In the case of an application or request as to which the
furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion need be furnished.



     (b) Unless expressly otherwise specified with respect to any certificate or opinion provided
for in this Indenture, every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than annual certificates provided pursuant to
Section 10.04) shall include:



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




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




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




          (iv) a statement as to whether or not, in the opinion of each such individual, such condition
or covenant has been complied with.




     SECTION 1.03 Form of Documents Delivered to Trustee. (a) 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.



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



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



     SECTION 1.04 Acts of Holders; Record Dates. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of any series may be embodied in and evidenced by (i) one or more
instruments of substantially similar tenor signed by such Holders in person or by proxies duly
appointed in writing, (ii) the record of such Holders 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, or (iii) a combination of any such record and one or more instruments of substantially
similar tenor signed by such Holders in person or by proxies duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective when such record and/or
instrument or instruments are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such record or instrument or instruments (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 proxy shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.



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



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



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor



8









 







or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action is made upon such
Security.



     (e) The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that
the Company may not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or direction referred to
in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date and no other Holders shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.



     (f) The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration, or any rescission or annulment of any such declaration, referred
to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(ii) or
(iv) any direction referred to in Section 5.12. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall
be entitled to join in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.



     (g) With respect to any record date set pursuant to this Section, the party hereto which sets
such record dates may designate any day as the “Expiration Date” and from time to



9









 







time may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this Section, the party
hereto which set such record date shall be deemed to have initially designated the 180th day after
such record date as the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.



     (h) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.



     SECTION 1.05 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:



     (a) the Trustee by any Holder or by the Company shall be made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office and unless otherwise herein expressly
provided, any such document shall be deemed to be sufficiently made, given, furnished or filed upon
its receipt by a Responsible Trust Officer of the Trustee, or



     (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and delivered in person,
mailed, first-class postage prepaid, or sent by overnight mail to the Company addressed to it at
935 First Avenue, King of Prussia, Pennsylvania 19406 or at any other address previously furnished
in writing to the Trustee by the Company, Attention: General Counsel.



     (c) Neither the Company nor the Trustee shall be deemed to have received any such request,
demand, authorization, direction, notice, consent, waiver or other Act of Holders unless given,
furnished or filed as provided in this Section 1.05.



     SECTION 1.06 Notice to Holders; Waiver. (a) Where this Indenture provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided or unless otherwise specified in such Securities) if in writing and delivered in person,
mailed, first-class postage prepaid or sent by overnight mail, to each Holder affected by such
event, at his address as it appears in the Security Register, within the time prescribed for the
giving of such notice, and



     (b) In 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 to Holders in the manner specified above, then
such notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.



     (c) In any case where notice to a Holder is given in any manner specified in paragraph (a)
above, such notice shall be conclusively presumed to have been duly given,



10









 







whether or not such Holder receives such notice. In any case where notice to Holders is given
in any manner specified in paragraph (a) above, neither the failure to deliver, mail or send such
notice, nor any defect in any notice so mailed or sent, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.



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



     SECTION 1.07 Conflict with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act
to be a part of and govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.



     SECTION 1.08 Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.



     SECTION 1.09 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 1.10 Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



     SECTION 1.12 Governing Law and Waiver of Jury Trial. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of the State of New York,
without giving effect to applicable principles of conflicts of laws to the extent the laws of
another jurisdiction would be required thereby. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.



     SECTION 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption
Date, Maturity, or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other
than a provision of any Security which specifically states that such provision shall apply in lieu
of this Section)) payment of interest or principal (and premium, if any) need



11









 







not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Maturity or Stated Maturity, as the case may be,
provided that no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Maturity or Stated Maturity, as the case may be, to the next succeeding
Business Day at such Place of Payment.



     SECTION 1.14 Computations. Unless otherwise specifically provided, the certificate or
opinion of any independent firm of public accountants of recognized standing selected by the Chief
Financial Officer or Chief Accounting Officer of the Company shall be conclusive evidence of the
correctness of any computation made under the provisions of this Indenture. The Company shall
furnish to the Trustee upon its request a copy of any such certificate or opinion.



     SECTION 1.15 Counterparts; Facsimile. This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, and signature pages may be
delivered by facsimile, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.



ARTICLE II

Security Forms




     SECTION 2.01 Forms Generally. The Securities of each series shall be in the form or
forms established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate provisions as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax laws or the rules of
any securities exchange or Depository therefor or as may, consistently herewith, be determined by
the officer executing such Securities, as evidenced by the officer’s execution thereof. If the form
of Securities of any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.04 with respect to the authentication and delivery of such
Securities.



     The Trustee’s certificate of authentication shall be substantially in the form set forth in
this Article.



     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officer executing such Securities,
as evidenced by the officer’s execution of such Securities.



     The Securities of each series will initially be issued in the form of one or more Global
Securities. Each such Global Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and each shall provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed thereon and that the
aggregate amounts of Outstanding Securities of such series represented thereby may from time to
time be reduced or increased, as appropriate. The Global Security or Securities evidencing the



12









 







Securities of a series (and all Securities issued in exchange therefore) shall bear the legend
indicated in Section 2.02.



     SECTION 2.02 Form of Legend for Global Securities.



     Every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



     UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     SECTION 2.03 Form of Trustee’s Certificate of Authentication.



     The Trustee’s certificates of authentication shall be in substantially the following form:



Certificate of Authentication




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



     Dated:



	 	 	 	 	 
	 	The Bank of New York Mellon, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



ARTICLE III

The Securities




13









 









     SECTION 3.01 Creation of Securities in Amount Unlimited. An unlimited aggregate
principal amount of Securities may be issued pursuant to this Article III. The Securities may be
authenticated and delivered, as authorized by the Board of Directors, in an unlimited number of
series.



     SECTION 3.02 Documents Required for Issuance of Each Series of Securities. At any
time and from time to time, Securities of each series created pursuant to the provisions of this
Article III may be executed by the Company and delivered to the Trustee and shall be authenticated
by the Trustee as contemplated by Section 3.04 upon receipt by the Trustee of the following:



     (a) A Board Resolution or Board Resolutions authorizing the execution, authentication and
delivery of the Securities of the series, or one or more indentures supplemental hereto,
specifying:



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




          (ii) any limit upon the aggregate principal amount of the Securities of the series which may
be authenticated and delivered under this Article III (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the same series pursuant to Section 3.05, 3.06, 3.07, 9.06 or 11.07 and except for any Securities
which, pursuant to Section 3.04, are deemed never to have been authenticated and delivered
hereunder); provided, however, that the authorized aggregate principal amount of
such series may be increased above such amount by a Board Resolution to such effect;




          (iii) the date or dates on which the principal (and premium, if any) of any of the Securities
of the series are payable or the method of determination thereof;




          (iv) the rate or rates, or the method of determination thereof, at which any of the Securities
of the series shall bear interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the Regular Record Date (if
other than as defined in this Indenture) for the interest payable on any Securities on any Interest
Payment Date;




          (v) the place or places where the principal of (and premium, if any) and interest, if any, on
any of the Securities of the series shall be payable and the office or agency for the Securities of
the series maintained by the Company pursuant to Section 10.02;




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




          (vii) the terms of any sinking fund and the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization
or analogous provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which, the currency or currencies (including currency




14









 







unit or units) in which and the other terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;




          (viii) the terms, if any, for the attachment to Securities of the series of warrants, options
or other rights to purchase or sell stock or other securities of the Company;




          (ix) if other than denominations of $1,000 and in any integral multiple thereof, the
denominations in which the Securities of the series shall be issuable;




          (x) if other than the principal amount thereof, the portion of the principal amount of any of
the Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02;




          (xi) any deletions or modifications of or additions to the Events of Default set forth in
Section 5.01 or covenants of the Company set forth in Article VIII or X pertaining to the
Securities of the series;




          (xii) the form or forms of the Securities of the series;




          (xiii) if other than Dollars, the currency or currencies, or currency unit or units, in which
the Securities of such series will be denominated and/or in which payment of the principal of (and
premium, if any) and interest, if any, on any of the Securities of the series shall be payable;




          (xiv) if the principal of (and premium, if any) or interest, if any, on any of the Securities
of the series are to be payable at the election of the Company or a Holder thereof, or under some
or all other circumstances, in a currency or currencies, or currency unit or units, other than that
in which the Securities are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made, or the other circumstances under which any of the
Securities are to be so payable, including, without limitation, any provision requiring the Holder
to bear currency exchange costs by deduction from such payments;




          (xv) if the amount of payments of principal of (and premium, if any) or interest, if any, on
any of the Securities of the series may be determined with reference to an index or indices based
on (A) a currency or currencies or currency unit or units other than that in which such Securities
are stated to be payable or (B) any method, not inconsistent with the provisions of this Indenture,
specified in or pursuant to such Board Resolution, then in each case (A) and (B) the manner in
which such amounts shall be determined;




          (xvi) whether any Securities of the series are to be issuable initially in temporary global
form and whether any Securities of the series are to be issuable in definitive global form and, if
so, whether beneficial owners of interests in any such definitive global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form and denomination
and the circumstances under which and the place or places where any such exchanges may occur, if
other than in the manner provided in Section 3.06;




15









 








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




          (xviii) whether and under what circumstances and with what procedures and documentation the
Company will pay additional amounts on any of the Securities of the series to any Holder who is not
a U.S. Person (including a definition of such term), in respect of any tax assessment or
governmental charge withheld or deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the terms of any such option);




          (xix) the Person to whom any interest on any Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, and the extent to which, or
the manner in which, any interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 3.05;




          (xx) the terms and conditions of any right or obligation on the part of the Company, or any
option on the part of the Holders, to convert or exchange the Securities of such series into cash
or any other securities or property of the Company or any other Person, and the additions or
changes, if any, to this Indenture with respect to the Securities of such series to permit or
facilitate such conversion or exchange; and




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




     If any of the terms of the series are established by action taken pursuant to a Board
Resolution or Board Resolutions, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee.



     (b) In case the Securities of the series to be authenticated and delivered are to be created
pursuant to one or more supplemental indentures, such supplemental indenture or indentures,
accompanied by a Board Resolution or Board Resolutions authorizing such supplemental indenture or
indentures and designating the new series to be created and prescribing, pursuant to paragraph (a)
above, consistent with the applicable provisions of this Indenture, the terms and provisions
relating to the Securities of the series.



     SECTION 3.03 Denominations. The Securities of each series issued in registered form
shall be issuable in such denominations as shall be specified as contemplated by Section 3.02. In
the absence of any such provisions with respect to the Securities of any series, the Securities of
such series denominated in Dollars shall be issuable in denominations of $l,000 and in any integral
multiple thereof. Each Security shall bear the appropriate legends, if any, as required by U.S.
Federal tax law and regulations.



     SECTION 3.04 Execution, Delivery, Dating and Authentication. (a) The Securities
shall be executed on behalf of the Company by a manual or facsimile signature of one of its
officers or, if required by any securities exchange on which the Securities may be listed, by a
manual or facsimile signature of two of its officers. In case an officer of the Company who shall



16









 







have signed any of the Securities shall cease to be such officer before the Securities so
signed shall have been authenticated and delivered by the Trustee or disposed of by the Company,
such Securities nevertheless may be authenticated and delivered or disposed of as though the person
who signed such Securities had not ceased to be such officer; and any Securities may be signed on
behalf of the Company by such person as, at the actual date of the execution of such Security,
shall be such officer of the Company, although at the date of the execution of this Indenture any
such person was not such officer.



     (b) At any time and from time to time, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.02, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided
with, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating:



          (i) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Sections 2.01 and 3.02, that such form has been established in conformity with the
provisions of this Indenture;




          (ii) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 3.02, that such terms have been established in conformity with the
provisions of this Indenture; and




          (iii) that such Securities have been duly executed and, when 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 legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.




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



     (d) Notwithstanding the provisions of Section 3.02, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate
otherwise required pursuant to Section 3.02 or the Company Order and Opinion of Counsel otherwise
required pursuant to Section 3.04(b) at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon original issuance of
the first Security of such series to be issued.



     (e) Each Security shall be dated the date of its authentication.



17









 





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



     (g) Minor typographical and other minor errors in the text of any Security shall not affect
the validity and enforceability of such Security if it has been duly authenticated and delivered by
the Trustee.



     (h) The Company shall execute and the Trustee shall authenticate and deliver one or more
Global Securities with respect to each series of Securities that (i) shall represent an aggregate
amount equal to the aggregate principal amount of the initially issued Securities of such series,
(ii) shall be registered in the name of the Depository or the nominee of the Depository, (iii)
shall be delivered by the Trustee to the Depository or pursuant to the Depository’s instruction and
(iv) shall bear a legend substantially in the form required in Section 2.02.



     The Depository must, at all times while it serves as such Depository, be a clearing agency
registered under the Exchange Act and any other applicable statute or regulation.



     SECTION 3.05 Temporary Securities. (a) Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are 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 and with such appropriate insertions,
omissions, substitutions and other variations as the officer executing such Securities may
determine (but which do not affect the rights, duties or immunities of the Trustee), as evidenced
conclusively by his or her execution of such Securities. Such temporary Securities may be in global
form.



     (b) If temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for definitive Securities
upon surrender of the temporary Securities at the office or agency of the Company in a Place of
Payment without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of authorized
denominations and having the same Original Issue Date and Stated Maturity and having the same terms
as such temporary Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.



18









 





     SECTION 3.06 Registration, Registration of Transfer and Exchange. (a) The Company
shall cause to be kept at an office or agency to be maintained by the Company in accordance with
Section 10.02 a register (being the combined register of the Security Registrar and all additional
transfer agents designated pursuant to Section 10.02 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the “Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for the registration of
Securities and the registration of transfers of Securities. The Bank of New York Mellon is hereby
appointed the initial Security Registrar, with the Security Register initially to be kept at 101
Barclay Street, Floor 8 West, New York, New York 10286. At all reasonable times each register
maintained by the Security Registrar and any additional transfer agents shall be open for
inspection by the Trustee.



     (b) Upon surrender for registration of transfer of any Security of any series at the office or
agency of the Company maintained pursuant to Section 10.02 for such purpose in a Place of Payment
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 Securities of the same series of
any authorized denominations and of a like aggregate principal amount and tenor, of the same
Original Issue Date and Stated Maturity and having the same terms.



     (c) At the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series of any authorized denominations and of a like aggregate principal
amount and tenor, of the same Original Issue Date and Stated Maturity and having the same terms,
upon surrender of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.



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



     (e) 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 entitled to the same benefits
under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.



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



     (g) No service charge shall be made for any registration of transfer or exchange of
Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.05, 9.06 or 11.07 not involving
any transfer.



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     (h) The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 Business Days
before the day of the mailing of a notice of redemption of any such Securities selected for
redemption under Section 11.03 and ending at the close of business on the day of the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the unredeemed portion of any Security being
redeemed in part.



     (i) The provisions of clauses (1), (2), (3) and (4) below shall apply only to Global
Securities:



          (1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depository designated for such Global Security or a nominee thereof and delivered to such
Depository or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.




          (2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depository for such Global
Security or a nominee thereof unless (A) such Depository (i) has notified the Company that it is
unwilling or unable to continue as Depository for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing
an Event of Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 3.02.




          (3) Subject to clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depository for such Global Security shall
direct.




          (4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 3.05, 3.07, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depository for such Global Security or a nominee thereof.




     SECTION 3.07 Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated
Security is surrendered to the Trustee together with such security or indemnity as may be required
by the Company or the Trustee to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such mutilated Security, and bearing a number not
contemporaneously outstanding.



     (b) If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a



20









 







bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.



     (c) In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     (d) 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.



     (e) Every new Security of any series issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued hereunder.



     (f) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



     SECTION 3.08 Payment of Interest; Interest Rights Preserved. (a) Unless otherwise
provided as contemplated by Section 3.02, with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest.
The initial payment of interest on any Security of any series which is issued between a Regular
Record Date and the related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.02 with respect to the related series of Securities.



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



          (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall




21









 







deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited shall be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or the respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).




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




     Subject to the foregoing provisions of this Section and Section 3.06, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.



     SECTION 3.09 Persons Deemed Owners. (a) Prior to due presentment of a 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 Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.06
and 3.08 and unless otherwise specified as contemplated by Section 3.02) interest on such Security
and for all other purposes whatsoever, whether or not such Security is overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.



     (b) None of the Company, the Trustee nor any agent of the Company or the Trustee 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 maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



     SECTION 3.10 Cancellation. All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered shall be promptly cancelled by the Trustee. The Company may at any time deliver to



22









 







the Trustee for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all Securities so delivered
to the Trustee shall be promptly cancelled 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 this Indenture. All cancelled Securities held by the Trustee shall be
disposed of in accordance with the Trustee’s customary procedure unless otherwise directed by a
Company Order; provided, however, that the Trustee may, but shall not be required
to, destroy such cancelled Securities.



     SECTION 3.11 Computation of Interest. Except as otherwise specified as contemplated
by Section 3.02, for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.



     SECTION 3.12 Depository.



     (a) If at any time the Depository notifies the Company that it is unwilling or unable to
continue as Depository or if at any time the Depository shall cease to be a clearing agency
registered under the Exchange Act, the Company shall appoint a successor Depository. If a successor
Depository is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities, will authenticate and
make available for delivery, individual Securities in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing the Outstanding Securities in
exchange for such Global Security or Securities.



     (b) The Company may at any time and in its sole discretion (subject to the procedures of the
Depository) determine that Securities issued in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Securities, will authenticate and make available for delivery, individual Securities in
an aggregate principal amount equal to the principal amount of the Global Security or Securities
representing the Outstanding Securities in exchange for such Global Security or Securities.



     (c) The Depository may surrender a Global Security in exchange in whole or in part for
individual Securities on such terms as are acceptable to the Company, the Trustee and such
Depository. Thereupon, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, without service charge:



          (1) to each Person specified by such Depository a new individual Security or Securities of any
authorized denomination as requested by such Person in aggregate principal amount equal to and in
exchange for such Person’s beneficial interest in the Global Security; and




23









 








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




     (d) Upon the exchange of a Global Security for individual Securities in an aggregate principal
amount equal to the principal amount of such Global Security, such Global Security shall be
canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall make available for
delivery such individual Securities to the Persons in whose names such Securities are so
registered.



     SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing
of any change in the “CUSIP” numbers.



ARTICLE IV

Satisfaction and Discharge




     SECTION 4.01 Satisfaction and Discharge of Indenture in Respect of any Series of
Securities. This Indenture shall upon Company Request cease to be of further effect with
respect to a series of Securities (except as to any surviving rights of (as applicable)
registration of transfer or exchange of Securities of such series herein expressly provided for),
and the Trustee, at the request and expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such series, when:



     (a) Either



          (i) all Securities of such series theretofore authenticated and delivered (other than (A)
Securities of such series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.07 and (B) Securities 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 10.03) have been
delivered to the Trustee for cancellation; or




          (ii) all such Securities of such series not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, or (B) will become due and payable at their Stated
Maturity within one year, or (C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company, in the case of (ii)(A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds: (i) money, (ii) U.S.
Government Obligations, which through the scheduled payment of principal and interest in




24









 







respect thereof in accordance with their terms will provide, not later than one day before the
due date of any payment, money, or (iii) a combination thereof, in each case in an amount, and in
the currency or currency unit in which such Securities of such series are payable, sufficient to
pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire
indebtedness on such Securities of such series not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit
(in the case of Securities of such series which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;




     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to such series of Securities; and



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



     Notwithstanding the satisfaction and discharge of this Indenture with respect to a series, the
obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money and/or U.S. Government Obligations shall have
been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the
obligations of the Trustee under Section 4.02 and Section 10.03(e) shall survive such satisfaction
and discharge.



     SECTION 4.02 Application of Trust Money. Subject to the provisions of Section
10.03(e), all money and U.S. Government Obligations deposited with the Trustee pursuant to Section
4.01 (and all proceeds of such U.S. Government Obligations deposited pursuant to Section 4.01 shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee.



ARTICLE V

Remedies




     SECTION 5.01 Events of Default. “Event of Default” with respect to any series of
Securities means each one of the events specified below in this Section 5.01, unless it is either
inapplicable to a particular series, or is specifically deleted or modified in or pursuant to the
supplemental indenture or Board Resolution establishing such series of Securities:



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




          (ii) default in the payment of the principal of or premium, if any, on any of the Securities
of such series, as and when the same shall become due and payable (subject to clause (iii) below)
either at Maturity, upon redemption, by declaration or otherwise (except the failure




25









 







to make payment when due and payable if such failure results solely from nonpayment by reason
of mistake, oversight or transfer difficulties and does not continue beyond three Business Days);
or




          (iii) default in the making of any payment for a sinking, purchase or analogous fund provided
for in respect of such series of Securities, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or




          (iv) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series) in respect of the
Securities of such series, or contained in this Indenture with respect to such series, for a period
of 60 days after the date on which written notice of such failure requiring the Company to remedy
the same and stating that such notice is a ‘Notice of Default’ hereunder, shall have 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 Securities of such series at the
time Outstanding; or




          (v) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any substantial part of its
property, or ordering the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or




          (vi) commencement by the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it or
a petition or answer or consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Company or for any substantial part of its property, or any general assignment by
the Company for the benefit of creditors, or the admission by it in writing of its inability
generally to pay its debts as they become due, or the taking by the Company of any corporate action
in furtherance of any of the foregoing; or




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




26









 








     SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. (a) If an Event of
Default (other than an Event of Default specified in Section 5.01(v) or 5.01(vi)) with respect to
Securities of any series at the time Outstanding occurs and is continuing, then in each and every
such case, either the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount (or, if the Securities
of that series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all of the Securities of that series, together with
accrued interest thereon, if any, to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount), together with accrued interest thereon, if any, shall become
immediately due and payable. If an Event of Default specified in Section 5.01(v) or 5.01(vi) with
respect to Securities of any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof) shall automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.



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



          (i) the Company has paid or deposited with the Trustee a sum sufficient to pay:




               (A) all overdue interest on all Securities of that series,



               (B) the principal of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,



               (C) to the extent that payment of such interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such Securities, and



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



     and



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



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




27









 








     SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee. (a)
The Company covenants that if:



          (i) default shall be made in the payment of any installment of interest on any Security when
the same shall become due and payable, and such default shall have continued for the period of 30
days,




          (ii) default shall be made in the payment of the principal of or premium, if any, on any
Security as and when the same shall have become due and payable (subject to clause (iii) below),
whether at Maturity of the Security or upon redemption or by declaration or otherwise, and such
default shall have continued for any period of grace provided for with respect to such Security, or




          (iii) default shall be made in the payment for any sinking, purchase or analogous fund
provided for in respect of any Security as and when the same shall become due and payable, and such
default shall have continued for any period of grace provided for with respect to such Security,



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




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



     (c) 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 by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.



     SECTION 5.04 Trustee May File Proofs of Claim. (a) In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee



28









 







shall be authorized to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder 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 in accordance with Section
5.06, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.



     (b) Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee
in bankruptcy or similar official and be a member of a creditors’ or other similar committee.



     SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities. All rights
of action and claims under this Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities 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 of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, before the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.



     SECTION 5.06 Application of Money Collected. Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities 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 under Section 6.07;



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



     THIRD: to the payment of the remainder, if any, to the Company, its successors or assigns or
as a court of competent jurisdiction may direct.



     SECTION 5.07 Limitation on Suits. No Holder 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:



29









 





          (i) an Event of Default with respect to Securities of such series shall have occurred and be
continuing and such Holder has previously given written notice to the Trustee of such continuing
Event of Default with respect to the Securities of that series;




          (ii) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series or, in the case of an Event of Default specified in clause (v) or (vi) of
Section 5.01, of all series (voting as a class) with respect to which such Event of Default has
occurred and is continuing, 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;




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




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




          (v) 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 aggregate principal amount of the Outstanding
Securities of that series or, in the case of an Event of Default specified in clause (v) or (vi) of
Section 5.01, of all series (voting as a class) with respect to which such Event of Default has
occurred and is continuing;




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 (including without
limitation the provisions of Section 5.12) to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.



     SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 3.08) interest, if any, on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.



     SECTION 5.09 Restoration of Rights and Remedies. If the Trustee or any Holder 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, subject to and determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



     SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in



30









 







Section 3.07(f), no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.



     SECTION 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of
any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to the provisions of Section 5.07, every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



     SECTION 5.12 Control by Holders. The Holders of not less than 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; provided that:



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




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




          (iii) subject to the provisions of Section 6.01, the Trustee shall have the right to decline
to follow any such direction if the Trustee in good faith shall, by a Responsible Trust Officer or
Officers of the Trustee, determine that the action so directed would involve the Trustee in
personal liability or be unduly prejudicial to Holders not joining therein.




     SECTION 5.13 Waiver of Past Defaults. Subject to Section 5.02(b)(i)(D), the Holders
of not less than a majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default:



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




          (ii) in respect of a covenant or provision hereof which under Article IX 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 with respect to such series, and any
Event of Default with respect to such series 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.



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     SECTION 5.14 Undertaking for Costs. All parties to this Indenture agree, and each
Holder of a 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 for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, 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 in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company or 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 the Outstanding Securities of any series, or any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date).



     SECTION 5.15 Waiver of Stay or Extension Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.



ARTICLE VI

The Trustee




     SECTION 6.01 Certain Duties and Responsibilities. The duties, responsibilities,
protections, privileges, and immunities of the Trustee shall be as provided by the Trust Indenture
Act, unless expressly excluded as provided in this Article VI. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.



     SECTION 6.02 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 to the Holders
of Securities of such series notice of such default as and to the extent provided by the Trust
Indenture Act, 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, on) or interest on any Security of such series or in the payment of any sinking
fund installment with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if



32









 







and so long as the board of directors, the executive committee or a trust committee of
directors or Responsible Trust Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series; provided,
further, that in the case of any default of the character specified in Section 5.01(iv)
with respect to Securities of such series, no such notice to Holders shall be given until at least
30 days after the occurrence of such default. 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 6.03 Certain Rights of Trustee. Subject to the provisions of Section 6.01:



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



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;



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



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



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



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or
document;



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



33









 





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



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



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



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



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



     (m) the Trustee may request that the Company deliver an Officer’s Certificate setting forth
the name of an individual and/or title of the officer authorized at such time to take specific
actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person
authorized to sign an Officer’s Certificate, including any person specified as so authorized in any
such Officer’s Certificate previously delivered and not superseded; and



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



     SECTION 6.04 Not Responsible for Recitals or Issuance of Securities. The recitals
contained herein and in the Securities, except the Trustee’s certificates of authentication, shall
be taken as the statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the proceeds thereof.



     SECTION 6.05 May Hold Securities. The Trustee, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities or warrants or subscription rights to purchase Securities and,



34









 







subject to Section 6.08 and 6.13, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.



     SECTION 6.06 Money Held in Trust. Money held by the Trustee or any Paying Agent in
trust hereunder need not be segregated from other funds except to the extent required by law. The
Trustee or any Paying Agent shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.



     SECTION 6.07 Compensation and Reimbursement. (a) The Company agrees:



          (i) to pay to the Trustee from time to time in Dollars such reasonable compensation as shall
be agreed to in writing between the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);




          (ii) except as otherwise expressly provided herein, to reimburse the Trustee in Dollars 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
reasonable expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the negligence or willful misconduct of the
Trustee or of its agents or counsel; and




          (iii) to indemnify the Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes, other than taxes based upon, or measured or
determined by, the income of the Trustee, (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel) incurred without negligence or willful
misconduct on its 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 itself
against any claim or liability in connection with the exercise or performance of any of its powers
or duties hereunder.




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



     (c) When the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(v) and Section 5.01(vi), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency
or other similar law. The provisions of this Section shall survive the satisfaction, discharge and
termination of this Indenture and the resignation or removal of the Trustee.



     SECTION 6.08 Disqualification; Conflicting Interests. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in Section 310(b) of the Trust Indenture Act,
with respect to the Securities of any series, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting interest or resign with respect to
the



35









 







Securities of that series in the manner and with the effect provided by, and subject to the
provisions of, Section 310(b) of the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to Securities of more than
one series or a trustee under any prior indenture between the Company and the Trustee, including
the Indenture, dated as of July 2, 2007, between the Company and The Bank of New York (now known as
The Bank of New York Mellon), as trustee, that has not been satisfied and discharged and that may
be excluded by the proviso to Section 310(b)(1) of the Trust Indenture Act.



     (b) In the event that the Trustee shall fail to comply with the provisions of the preceding
sentence with respect to the Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit, in the manner and to the extent provided in Section
1.06, to all Holders of Securities of that series notice of such failure.



     (c) Nothing herein shall prevent the Trustee from filing with the Commission the application
referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act.



     (d) To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest with respect to the Securities of any series by virtue of being Trustee
with respect to the Securities of any particular series of Securities other than that series.



     SECTION 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a
Trustee for each series of Securities hereunder which shall be either (1) a corporation organized
and doing business under the laws of the United States, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by Federal or State
authority or (2) a corporation or other Person organized and doing business under the laws of a
foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of
the Commission, which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by authority of such foreign government or apolitical
subdivision thereof substantially equivalent to supervision or examination applicable to United
States institutional trustees; in either case having a combined capital and surplus of at least
$50,000,000. If such corporation or Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation or Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. Neither the Company nor
any Person directly or indirectly controlling, controlled by, or under common control with the
Company shall serve as trustee for the Securities of any series issued hereunder. 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.



     SECTION 6.10 Resignation and Removal; Appointment of Successor. (a) No resignation
or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 6.11.



36









 





     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may, at the expense of
the Company, petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.



     (c) 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 aggregate principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the removed Trustee
within 30 days after the delivery of the evidence of the Act of the Holders, the removed Trustee
may, at the expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.



     (d) If at any time:



          (i) the Trustee shall fail to comply with Section 6.08 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security of a series as to which the
Trustee has a conflicting interest for at least six months, or




          (ii) the Trustee for a series shall cease to be eligible under Section 6.09 and shall fail to
resign after written request therefor by the Company or by any Holder, or




          (iii) 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 a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months (and, in the case of clause (i) above, who is a holder of a
Security of a series as to which the Trustee has a conflicting interest) may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of the Trustee for any cause, with respect to the Securities of one or
more series, the Company, by 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 of or all such
series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and such successor Trustee or Trustees shall comply with the applicable
requirements of Section 6.11. 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




37









 







series shall be appointed by Act of the Holders of a majority in aggregate 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 6.11, 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 and accepted appointment in the manner
required by Section 6.11, any Holder 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.




     (f) 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 giving notice of such event to all Holders of Securities of such
series as provided by Section 1.06. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate Trust Office.




     SECTION 6.11 Acceptance of Appointment by Successor. (a) In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder.



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



38









 







by any other such Trustee; and upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates.



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



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



     SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to 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 be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



     SECTION 6.13 Preferential Collection of Claims Against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).



     SECTION 6.14 Appointment of Authenticating Agent. (a) The Company may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon
original issue or upon exchange, registration of transfer or partial redemption thereof or pursuant
to Section 3.07, 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 Trustee and shall at all times be a
corporation having a combined capital and surplus of not less than the equivalent of $50,000,000



39









 







and subject to supervision or examination by Federal, state or District of Columbia authority
or the equivalent foreign authority, in the case of an Authenticating Agent who is not organized
and doing business under the laws of the United States. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.



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



     (c) An Authenticating Agent may resign at any time by giving written notice thereof to the
Trustee and to the Company. The Company may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Trustee. 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 Company may appoint a successor Authenticating Agent which shall be acceptable to the Trustee
and shall mail, or cause to be mailed, written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the Security Register. 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.



     (d) The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.



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



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



40









 





	 	 	 	 	 
	The Bank of New York Mellon,

as Trustee

 	 	 
	By:  	 	 	 
	 	[                    ] 	 	 
	 	As Authenticating Agent 	 	 
	 
	 	 	 
	By:  	 	 	 
	 	Authorized Officer 	 	 
	 	 	 	 



Dated:                                         





     (f) If all the Securities of a 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 or other place where the Company wishes to have Securities of such series
authenticated upon original issuance, the Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be appointed as an
Authenticating Agent hereunder) having an office in such Place of Payment or other place designated
by the Company with respect to such series of Securities.



ARTICLE VII

Holders’ Lists and Reports by Trustee and Company




     SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders. The Company
will furnish or cause to be furnished to the Trustee:



     (a) semiannually, not later than January 15 and July 15 in each year, a list in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of each series of
Securities as of the preceding January 1 or July 1, as the case may be; and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content, such list to be
dated as of a date not more than 15 days prior to the time such list is furnished,
provided, however, that, in the case of both Sections 7.01(a) and (b), at such
times as the Trustee is the Security Registrar and Paying Agent with respect to a particular series
of Securities, no such list shall be required to be furnished in respect of such series.



     SECTION 7.02 Preservation of Information; Communications to Holders. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, the names and addresses of
Holders of each series contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of each series received by the Trustee in any
capacity as Security Registrar or Paying Agent. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.



     The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.



41









 





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



     SECTION 7.03 Reports by Trustee. (a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
commencing with the May 15 occurring after the initial issuance of Securities hereunder, deliver to
Holders a brief report, dated as of such May 15, which complies with the provisions of Section
313(a) of the Trust Indenture Act.



     (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each United States stock exchange upon which any Securities are listed, with the
Commission and with the Company.



     (c) Reports pursuant to Section 7.03(a) shall be transmitted by mail (i) to all Holders, as
their names and addresses appear in the Security Register, (ii) to all Holders as have, within two
years preceding such transmission, filed their names and addresses with the Trustee for such
purpose, and (iii) to all Holders whose names and addresses have been furnished or received by the
Trustee pursuant to Sections 7.01 and 7.02.



     SECTION 7.04 Reports by Company. (a) The Company shall:



          (i) 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;




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




          (iii) transmit by mail to all Holders of Securities, in the manner and to the extent provided
in Section 7.03(c) with respect to reports to be transmitted pursuant to Section 7.03(a), within 30
days after the filing thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraph




42









 







(i) of (ii) of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.




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



ARTICLE VIII

Consolidation, Merger, Conveyance or Transfer




     SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms. (a) Subject to
Section 8.01(b), the Company shall not consolidate with or merge into any other Person or convey or
transfer its assets substantially as an entirety to any Person, unless:



          (i) the Person formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer the assets of the Company substantially as an entirety
shall be a corporation, partnership, trust or limited liability company organized and existing
under the laws of the United States and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and interest, if any, on all the
Securities and the performance or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;




          (ii) 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




          (iii) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance or transfer 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.




     (b) The provisions of Section 8.01(a)(i), (ii) and (iii) shall not be applicable to the direct
or indirect conveyance or transfer of all or any portion of the stock, assets or liabilities of any
of the Company’s wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries of
the Company.



     SECTION 8.02 Successor Corporation Substituted. Upon any consolidation of the Company
with, or merger of the Company into, any other Person, or any conveyance or transfer of the assets
of the Company substantially as an entirety in accordance with Section 8.01, the successor Person
formed by such consolidation or into which the Company is merged or to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance or transfer, the Company
(which term shall for this purpose mean the Person named



43









 







as the “Company” in the first paragraph of this instrument or any successor corporation which
shall have theretofore become such in the manner prescribed in Section 8.01) shall be discharged
from all liability under this Indenture and in respect of the Securities and may be dissolved and
liquidated.



ARTICLE IX

Supplemental Indentures




     SECTION 9.01 Supplemental Indentures Without Consent of Holders. Without the consent
of any Holders, 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 satisfactory to the Trustee, for any of the following purposes:



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




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




          (iii) to add any additional Events of Default with respect to all or any series of the
Securities (and, if such Event of Default is applicable to less than all series of Securities,
specifying the series to which such Event of Default is applicable);




          (iv) to add to, change or eliminate any of the provisions of this Indenture; provided
that any such addition, change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;




          (v) to secure the Securities;




          (vi) to establish the form or terms of Securities of any series as permitted by Sections 2.01
and/or 3.02;




          (vii) 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 6.11(b);




          (viii) to provide for the issuance of uncertificated Securities of one or more series in
addition to or in place of certificated Securities;




          (ix) to conform any provision hereof to the requirements of the Trust Indenture Act or
otherwise as necessary to comply with applicable law;




44









 








          (x) to cure any ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or




          (xi) to make any other provisions with respect to matters or questions arising under this
Indenture; provided such other provisions as may be made shall not adversely affect the
interests of the Holders of Outstanding Securities of any series in any material respect.




     SECTION 9.02 Supplemental Indentures with Consent of Holders. (a) With the consent
of the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of all series affected by such supplemental indenture (acting as one class), 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 modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,



          (i) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the
currency, currencies or currency unit or units in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or affect adversely the terms, if any, of conversion or exchange of any Security
into cash or any other securities or property of the Company or of any other Person,




          (ii) reduce the percentage in aggregate 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 this Indenture,




          (iii) change any obligation of the Company, with respect to Outstanding Securities of a
series, to maintain an office or agency in the places and for the purposes specified in Section
10.02 for such series, or




          (iv) modify any of the provisions of this Section or Section 5.13, except to increase any such
percentage or to provide with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the consent of the Holders of a
specified percentage of the aggregate principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 3.02 without the consent of any Holder) 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;




45









 







provided, however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the requirements of Section
6.11(b) and 9.01(vi).




     (b) For purposes of this Section 9.02, if the Securities of any series are issuable upon the
exercise of warrants or subscription rights, each holder of an unexercised and unexpired warrant or
subscription right with respect to such series shall be deemed to be a Holder of Outstanding
Securities of such series in the amount issuable upon the exercise of such warrant or subscription
right. For such purposes, the ownership of any such warrant or subscription right shall be
determined by the Company in a manner consistent with customary commercial practices. The Trustee
for such series shall be entitled to rely on an Officer’s Certificate as to the principal amount of
Securities of such series in respect of which consents shall have been executed by holders of such
warrants or subscription rights.



     (c) A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act
of Holders under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance thereof.



     SECTION 9.03 Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be provided with,
and (subject to Section 6.01) shall be fully protected in relying upon, in addition to the
documents required by Section 1.02, an Opinion of Counsel and an Officer’s Certificate each stating
that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties, immunities or liabilities under this Indenture or
otherwise.



     SECTION 9.04 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.



     SECTION 9.05 Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.



     SECTION 9.06 Reference in Securities to Supplemental Indentures. Securities of any
series authenticated and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the Company shall so



46









 







determine, new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such series.



ARTICLE X

Covenants




     SECTION 10.01 Payment of Principal, Premium and Interest. The Company covenants and
agrees for the benefit of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any, on) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities and this Indenture.



     SECTION 10.02 Maintenance of Office or Agency. (a) If Securities of a series are
issuable only as Securities, the Company will maintain in each Place of Payment for such series an
office or agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will maintain (i) in the Borough of Manhattan, The City of New
York, an office or agency where any Securities may be presented or surrendered for payment, where
any Securities may be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (ii) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series may be presented and surrendered for
payment (including payment of any additional amounts payable on Securities of that series, if any);
provided, however, that if the Securities of that series are listed on any stock
exchange located outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in any required city located outside
the United States, so long as the Securities of that series are listed on such exchange, and (iii)
subject to any laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States, an office or agency where any Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company will give prompt
written notice to the Trustee and the Holders of the location, and any change in the location, of
any such office or agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the same as its agent to receive such respective presentations, surrenders,
notices and demands.



     (b) 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



47









 







no such designation or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the Trustee and the
Holders of any such designation or rescission and of any change in the location of any such other
office or agency.



     SECTION 10.03 Money for Securities Payments to be Held in Trust. (a) If the Company
shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on
or before each due date of the principal of (and premium, if any, on) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the relevant currency (or a sufficient number of currency units, as the
case may be) sufficient to pay the principal (and premium, if any, on) or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee in writing of its action or failure so to act.



     (b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, at or prior to the opening of business on each due date of the principal of (and premium, if
any, on) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing
of its action or failure so to act.



     (c) The Company will 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 will:



          (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent;




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




          (iii) 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.




     (d) 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 trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.



     (e) Any money or U.S. Government Obligation (including the proceeds thereof and the interest
thereon) deposited with the Trustee or any Paying Agent, or then held by the



48









 







Company, in trust for the payment of the principal of and premium, if any, on or interest, if
any, on any Security of any series and remaining unclaimed for two years after such principal and
premium, if any, or interest has become due and payable shall be paid to the Company (unless
otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property
law) or (if then held by the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment 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 at the expense and at the direction of the Company cause to be
published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified herein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company. All moneys payable to the Company by the Trustee or any Paying Agent
as provided in the preceding sentence shall be paid to the Company on May 31 of each year.



     SECTION 10.04 Statement by Officers as to Default. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on
December 31), a written certificate covering the preceding fiscal year signed by the principal
executive officer, the principal financial officer or the principal accounting officer of the
Company, stating that:



          (i) a review of the activities of the Company during such year and of performance under this
Indenture has been made under his supervision; and




          (ii) to his knowledge, based on such review, the Company has fulfilled all its obligations,
and has complied with all conditions and covenants, under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such obligation, condition or covenant,
specifying each such default known to him and the nature and status thereof. For purposes of this
Section 10.04, compliance shall be determined without regard to any grace period or requirement of
notice provided pursuant to the terms of this Indenture.




     SECTION 10.05 Waiver of Certain Covenants. Except as otherwise specified as
contemplated by Section 3.02 for Securities of such series, the Company may, with respect to the
Securities of such series, omit in any particular instance, to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 3.02(a), 9.01(ii) or 9.01(vi) for
the benefit of Holders of such series if before the time for such compliance the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities of such series shall
either waive such compliance in such instance or generally waive 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. The Company shall provide written notice to
the Trustee upon the occurrence of any such waiver.



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ARTICLE XI

Redemption of Securities




     SECTION 11.01 Applicability of Article. Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.02 for Securities of any series) in accordance
with this Article.



     SECTION 11.02 Election to Redeem; Notice to Trustee. If the Company shall desire to
exercise the right to redeem all, or, as the case may be, any part of the Securities of any series,
the Company shall, at least 45 days but not more than 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee) notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such
restriction.



     SECTION 11.03 Selection by Trustee of Securities to be Redeemed. (a) If less than
all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by the Trustee in accordance with
its customary practices or as the Company may direct in writing in accordance with DTC procedures.



     (b) The Trustee shall promptly notify the Company 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.



     (c) 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 amount of such Securities which has been
or is to be redeemed.



     SECTION 11.04 Notice of Redemption. (a) Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, as provided in Section 1.06.



     (b) Each such notice of redemption shall specify the following:



          (i) the Redemption Date;




          (ii) the Redemption Price or, if not then ascertainable, the manner of calculation thereof;




          (iii) the Place or Places of Payment;




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          (iv) that the Securities of such series are being redeemed at the option of the Company
pursuant to provisions contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case;




          (v) the name and address of the Paying Agent;




          (vi) a brief statement of the facts permitting such redemption;




          (vii) that on the Redemption Date the Redemption Price will become due and payable upon each
Security redeemed;




          (viii) that payment will be made upon presentation and surrender of the applicable Securities;




          (ix) that any interest accrued to the Redemption Date will be paid as specified in said
notice;




          (x) that the redemption is pursuant to the sinking fund, if such is the case; and




          (xi) that on and after said Redemption Date any interest thereon or on the portions thereof to
be redeemed will cease to accrue.




     (c) If less than all the Securities of any series are to be redeemed, the notice of redemption
shall specify the registration and, if any, CUSIP numbers of the Securities of such series to be
redeemed. In case any Security of any series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that on and after the Redemption Date, upon surrender of such Security, a new Security or
Securities of such series in aggregate principal amount equal to the unredeemed portion thereof
will be issued, or, in the case of Securities providing appropriate space for such notation, at the
option of the Holders, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.



     (d) Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or by the Trustee in the name and at the expense and written request of the
Company and such written request shall be given to the Trustee 15 days prior to the date of the
giving of the notice of redemption or such lesser time as may be agreed to by the Trustee. The
notice of redemption if mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case, a failure to give
such notice by mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.



     SECTION 11.05 Deposit of Redemption Price. On or before the opening of business on
any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own paying Agent, segregate and hold in trust as provided in Section
10.03) an amount of money in the relevant currency (or a sufficient number of currency units, as
the case may be) sufficient to pay the Redemption Price of, and (except if the



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Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.



     SECTION 11.06 Securities Payable on Redemption Date. (a) Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear and accrue any interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the Redemption Price,
together with any accrued but unpaid interest to, but excluding, the Redemption Date;
provided, however, that unless otherwise specified as contemplated by Section 3.02,
installments of accrued and unpaid interest on Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.08.



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



     SECTION 11.07 Securities Redeemed in Part. Any Security which is to be redeemed only
in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or 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 Security or Securities of the same series and
Stated Maturity, 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 or, in the case of Securities providing appropriate space for such notation, at the
option of the Holder, the Trustee, in lieu of delivering a new Security or Securities as aforesaid,
may make a notation on such Security of the Payment of the redeemed portion thereof.



ARTICLE XII

Sinking Funds




     SECTION 12.01 Applicability of Article. (a) The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 3.02 for Securities of such series.



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



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     SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities. The Company (1)
may deliver Outstanding Securities of a series (other than any previously called for redemption)
and (2) may apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previously so credited. Such
Securities shall be received and the outstanding principal amount thereof credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



     SECTION 12.03 Redemption of Securities for Sinking Fund. Not less than 60 days prior
to each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing 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 Securities of that series pursuant to Section 12.02 and will also deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided in Section 11.04.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 11.06 and 11.07.



ARTICLE XIII

Defeasance and Covenant Defeasance




     SECTION 13.01 Company’s Option to Effect Defeasance or Covenant Defeasance. The
Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any
Securities upon compliance with the conditions set forth below in this Article. Any such election
shall be evidenced by a Board Resolution.



     SECTION 13.02 Defeasance and Discharge. Upon the Company’s exercise of its option (if
any) to have this Section applied to any Securities, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.04 are satisfied (“Defeasance”). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee,
at the expense of the Company and upon Company Request, shall execute proper instruments
acknowledging the same), subject to the following, which shall survive until otherwise terminated
or discharged hereunder: (1) the Company’s obligations with respect to such Securities under
Sections 3.05, 3.06, 3.07, 10.02 and 10.03; (2) the rights, powers, trusts, duties and immunities
of the Trustee hereunder; and (3) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have



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this Section applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 13.03 applied to such Securities.



     SECTION 13.03 Covenant Defeasance. Upon the Company’s exercise of its option (if any)
to have this Section applied to any Securities (1) the Company shall be released from its
obligations under Section 8.01 and any covenants provided pursuant to 9.01(ii) for the benefit of
the Holders of such Securities; and (2) the occurrence of any event specified in Sections 5.01(iv)
(with respect to any of Section 8.01 and any such covenants provided pursuant to Section 9.01(ii))
shall be deemed not to be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set forth in Section
13.04 are satisfied (“Covenant Defeasance”). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, 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 specified Section (to the extent
so specified in the case of Section 5.01(iv)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.



     Notwithstanding any Covenant Defeasance with respect to Section 8.01, any Person that would
otherwise have been required to assume the obligations of the Company pursuant to said Section
shall be required, as a condition to any merger, consolidation, conveyance or transfer contemplated
thereby, to assume the obligations of the Company to the Trustee under Sections 6.07 and 13.05.



     SECTION 13.04 Conditions to Defeasance or Covenant Defeasance. The following shall be
the conditions to the application of Section 13.02 or Section 13.03 to any Securities:



          (i) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money,
or (B) U.S. Government Obligations 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, money, or (C) a combination thereof, in each case in an amount sufficient to
pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such Securities due on or
before the respective Stated Maturities or the Redemption Date, in accordance with the terms of
this Indenture and such Securities; provided that the Company shall deliver to the Trustee
an opinion of a nationally recognized firm of independent public accountants expressed in a written
certification, as to the sufficiency of deposits made by the Company pursuant to this Section.




          (ii) In the event of an election to have Section 13.02 apply to any Securities, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date
of this instrument, there has been a change in the applicable Federal income tax law, in the case
of either (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal




54









 







income tax purposes as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.




          (iii) In the event of an election to have Section 13.03 apply to any Securities, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a result of the
deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.




          (iv) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in Sections
5.01(v) and (vi), at any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such 90th day).




          (v) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any indenture or other agreement or instrument for borrowed money to
which the Company is a party or by which it is bound.




          (vi) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under the Investment Company Act or exempt from registration
thereunder.




          (vii) If such Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such redemption shall have been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have
been made.




          (viii) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.




     SECTION 13.05 Deposited Money or U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions. Subject to the provisions of Section 10.03(e), all money or U.S.
Government Obligations (including the proceeds thereof and the interest thereon) deposited with the
Trustee pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the extent required by law.



55









 





     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 13.04 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee or in the opinion of such other Persons delivered to the Trustee
as shall be reasonably satisfactory to the Trustee (which may be the same opinion delivered to the
Trustee under Section 13.04(i)), are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.



     SECTION 13.06 Reinstatement. If the Trustee or the Paying Agent is unable to apply
any money in accordance with this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations under this Indenture and such Securities from which the
Company has been discharged or released pursuant to Section 13.02 or 13.03 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.06 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any such Security following such reinstatement of its obligations, the
Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.



* * *




     The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or
supplemented from time to time, the “USA Patriot Act”), the Trustee, like all financial
institutions, is required to obtain, verify, and record information that identifies each person or
legal entity that opens an account. The parties to this Indenture agree that they will provide the
Trustee with such information as the Trustee may request in order for the Trustee to satisfy the
requirements of the USA Patriot Act.



     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
with respect to the Company its corporate seal to be hereunto affixed and attested, all as of the
day and year first above written.



	 	 	 	 	 
	 	GSI COMMERCE, INC.,

 	 
	 	By:  	/s/
Arthur H. Miller	 
	 	 	Arthur H. Miller	 
	 	 	EVP	 
	 
	 	THE BANK OF NEW YORK MELLON, as Trustee

 	 
	 	By:  	/s/ Scott Klein
 	 
	 	 	Scott Klein, Vice-President 	 
	 	 	 	 
	 




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