exv4w3






Exhibit 4.3




Subordinated Debt Indenture




 





THE SCOTTS MIRACLE-GRO COMPANY, as Issuer




and




__________, as Trustee




________________




Indenture

______________




Dated as of ______________, 2009




_________________




 






 









 








Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.01.
	 	Definitions	 	 	1	 
	Section 1.02.
	 	Compliance Certificates and Opinions	 	 	9	 
	Section 1.03.
	 	Form of Documents Delivered to Trustee	 	 	9	 
	Section 1.04.
	 	Notices, etc., to Trustee and Company	 	 	10	 
	Section 1.05.
	 	Notice to Holders; Waiver	 	 	10	 
	Section 1.06.
	 	Conflict with Trust Indenture Act	 	 	11	 
	Section 1.07.
	 	Effect of Headings and Table of Contents	 	 	11	 
	Section 1.08.
	 	Successors and Assigns	 	 	11	 
	Section 1.09.
	 	Separability Clause	 	 	11	 
	Section 1.10.
	 	Benefits of Indenture	 	 	11	 
	Section 1.11.
	 	Governing Law	 	 	11	 
	Section 1.12.
	 	Legal Holidays	 	 	11	 
	Section 1.13.
	 	No Security Interest Created	 	 	12	 
	Section 1.14.
	 	Liability Solely Corporate	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE TWO DEBT SECURITY FORMS	 	 	12	 
	 
	 	 	 	 	 	 
	Section 2.01.
	 	Forms Generally	 	 	12	 
	Section 2.02.
	 	Form of Trustee’s Certificate of Authentication	 	 	13	 
	Section 2.03.
	 	Securities in Global Form	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE THREE THE DEBT SECURITIES	 	 	13	 
	 
	 	 	 	 	 	 
	Section 3.01.
	 	Amount Unlimited; Issuable in Series	 	 	13	 
	Section 3.02.
	 	Denominations	 	 	17	 
	Section 3.03.
	 	Execution, Authentication, Delivery and Dating	 	 	17	 
	Section 3.04.
	 	Temporary Debt Securities; Global Notes Representing Registered Securities	 	 	18	 
	Section 3.05.
	 	Transfer and Exchange	 	 	21	 
	Section 3.06.
	 	Mutilated, Destroyed, Lost and Stolen Debt Securities	 	 	22	 
	Section 3.07.
	 	Payment of Interest; Interest Rights Preserved	 	 	22	 
	Section 3.08.
	 	Cancellation	 	 	23	 
	Section 3.09.
	 	Computation of Interest	 	 	24	 
	Section 3.10.
	 	Currency of Payments in Respect of Debt Securities	 	 	24	 
	Section 3.11.
	 	Judgments	 	 	26	 
	Section 3.12.
	 	Exchange Upon Default	 	 	27	 
	Section 3.13.
	 	CUSIP and ISN Numbers	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE	 	 	27	 
	 
	 	 	 	 	 	 
	Section 4.01.
	 	Satisfaction and Discharge of Indenture	 	 	27	 
	Section 4.02.
	 	Application of Trust Money	 	 	29	 






i 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE FIVE REMEDIES	 	 	29	 
	 
	 	 	 	 	 	 
	Section 5.01.
	 	Events of Default	 	 	29	 
	Section 5.02.
	 	Acceleration of Maturity; Rescission and Annulment	 	 	30	 
	Section 5.03.
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	31	 
	Section 5.04.
	 	Trustee May File Proofs of Claim	 	 	32	 
	Section 5.05.
	 	Trustee May Enforce Claims Without Possession of Debt Securities	 	 	32	 
	Section 5.06.
	 	Application of Money Collected	 	 	33	 
	Section 5.07.
	 	Limitation on Suits	 	 	33	 
	Section 5.08.
	 	Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	34	 
	Section 5.09.
	 	Restoration of Rights and Remedies	 	 	34	 
	Section 5.10.
	 	Rights and Remedies Cumulative	 	 	34	 
	Section 5.11.
	 	Delay or Omission Not Waiver	 	 	34	 
	Section 5.12.
	 	Control by Holders	 	 	34	 
	Section 5.13.
	 	Waiver of Past Defaults	 	 	35	 
	Section 5.14.
	 	Undertaking for Costs	 	 	35	 
	Section 5.15.
	 	Waiver of Stay or Extension Laws	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE SIX THE TRUSTEE	 	 	36	 
	 
	 	 	 	 	 	 
	Section 6.01.
	 	Certain Duties and Responsibilities	 	 	36	 
	Section 6.02.
	 	Notice of Defaults	 	 	37	 
	Section 6.03.
	 	Certain Rights of Trustee	 	 	37	 
	Section 6.04.
	 	Not Responsible for Recitals or Issuance of Debt Securities	 	 	38	 
	Section 6.05.
	 	May Hold Debt Securities	 	 	38	 
	Section 6.06.
	 	Money Held in Trust	 	 	38	 
	Section 6.07.
	 	Compensation and Reimbursement	 	 	38	 
	Section 6.08.
	 	Disqualification; Conflicting Interests	 	 	39	 
	Section 6.09.
	 	Corporate Trustee Required; Eligibility	 	 	44	 
	Section 6.10.
	 	Resignation and Removal; Appointment of Successor	 	 	44	 
	Section 6.11.
	 	Acceptance of Appointment by Successor	 	 	45	 
	Section 6.12.
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	46	 
	Section 6.13.
	 	Preferential Collection of Claims Against Company	 	 	46	 
	Section 6.14.
	 	Appointment of Authenticating Agent	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY	 	 	51	 
	 
	 	 	 	 	 	 
	Section 7.01.
	 	Company to Furnish Trustee Names and Addresses of Holders	 	 	51	 
	Section 7.02.
	 	Preservation of Information; Communication to Holders	 	 	51	 
	Section 7.03.
	 	Reports by Trustee	 	 	53	 
	Section 7.04.
	 	Reports by Company	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT CONCERNING THE HOLDERS	 	 	55	 
	 
	 	 	 	 	 	 
	Section 8.01.
	 	Acts of Holders	 	 	55	 
	Section 8.02.
	 	Proof of Ownership; Proof of Execution of Instruments by Holder	 	 	55	 
	Section 8.03.
	 	Persons Deemed Owners	 	 	55	 
	Section 8.04.
	 	Revocation of Consents; Future Holders Bound	 	 	56	 






ii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE NINE HOLDERS’ MEETINGS	 	 	56	 
	 
	 	 	 	 	 	 
	Section 9.01.
	 	Purposes of Meetings	 	 	56	 
	Section 9.02.
	 	Call of Meetings by Trustee	 	 	56	 
	Section 9.03.
	 	Call of Meetings by Company or Holders	 	 	57	 
	Section 9.04.
	 	Qualifications for Voting	 	 	57	 
	Section 9.05.
	 	Regulations	 	 	57	 
	Section 9.06.
	 	Voting	 	 	58	 
	Section 9.07.
	 	No Delay of Rights by Meeting	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE TEN CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	58	 
	 
	 	 	 	 	 	 
	Section 10.01.
	 	Company May Consolidate, etc., Only on Certain Terms	 	 	58	 
	Section 10.02.
	 	Successor Corporation Substituted	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE ELEVEN SUPPLEMENTAL INDENTURES	 	 	59	 
	 
	 	 	 	 	 	 
	Section 11.01.
	 	Supplemental Indentures Without Consent of Holders	 	 	59	 
	Section 11.02.
	 	Supplemental Indentures With Consent of Holders	 	 	60	 
	Section 11.03.
	 	Execution of Supplemental Indentures	 	 	61	 
	Section 11.04.
	 	Effect of Supplemental Indentures	 	 	61	 
	Section 11.05.
	 	Conformity with Trust Indenture Act	 	 	61	 
	Section 11.06.
	 	Reference in Debt Securities to Supplemental Indentures	 	 	61	 
	Section 11.07.
	 	Notice of Supplemental Indenture	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE TWELVE COVENANTS	 	 	62	 
	 
	 	 	 	 	 	 
	Section 12.01.
	 	Payment of Principal, Premium and Interest	 	 	62	 
	Section 12.02.
	 	Officer’s Certificate as to Default	 	 	62	 
	Section 12.03.
	 	Maintenance of Office or Agency	 	 	62	 
	Section 12.04.
	 	Money for Debt Securities; Payments To Be Held in Trust	 	 	63	 
	Section 12.05.
	 	Corporate Existence	 	 	64	 
	Section 12.06.
	 	Waiver of Certain Covenants	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE THIRTEEN REDEMPTION OF DEBT SECURITIES	 	 	64	 
	 
	 	 	 	 	 	 
	Section 13.01.
	 	Applicability of Article	 	 	64	 
	Section 13.02.
	 	Election to Redeem; Notice to Trustee	 	 	64	 
	Section 13.03.
	 	Selection by Trustee of Debt Securities to Be Redeemed	 	 	65	 
	Section 13.04.
	 	Notice of Redemption	 	 	65	 
	Section 13.05.
	 	Deposit of Redemption Price	 	 	66	 
	Section 13.06.
	 	Debt Securities Payable on Redemption Date	 	 	66	 
	Section 13.07.
	 	Debt Securities Redeemed in Part	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE FOURTEEN SINKING FUNDS	 	 	67	 
	 
	 	 	 	 	 	 
	Section 14.01.
	 	Applicability of Article	 	 	67	 
	Section 14.02.
	 	Satisfaction of Mandatory Sinking Fund Payments with Debt Securities	 	 	67	 
	Section 14.03.
	 	Redemption of Debt Securities for Sinking Fund	 	 	67	 






iii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE FIFTEEN DEFEASANCE	 	 	69	 
	 
	 	 	 	 	 	 
	Section 15.01.
	 	Applicability of Article	 	 	69	 
	Section 15.02.
	 	Defeasance Upon Deposit of Moneys or U.S. Government Obligations	 	 	69	 
	Section 15.03.
	 	Deposited Moneys and U.S. Government Obligations to Be Held in Trust	 	 	70	 
	Section 15.04.
	 	Repayment to Company	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE SIXTEEN SUBORDINATION	 	 	71	 
	 
	 	 	 	 	 	 
	Section 16.01.
	 	Agreement to Subordinate	 	 	71	 
	Section 16.02.
	 	Distribution on Dissolution, Liquidation and Reorganization;	 	 	 	 
	 
	 	Subrogation of Debt Securities	 	 	71	 
	Section 16.03.
	 	No Payment on Debt Securities in Event of Default on Senior Indebtedness	 	 	73	 
	Section 16.04.
	 	Payments on Debt Securities Permitted	 	 	73	 
	Section 16.05.
	 	Trustee to Effectuate Subordination	 	 	73	 
	Section 16.06.
	 	Notices to Trustee	 	 	73	 
	Section 16.07.
	 	Trustee as Holder of Senior Indebtedness	 	 	74	 
	Section 16.08.
	 	Modification of Terms of Senior Indebtedness	 	 	74	 
	Section 16.09.
	 	Reliance on Judicial Order or Certificate of Liquidation Agent	 	 	74	 
	 
	 	 	 	 	 	 
	ARTICLE SEVENTEEN CONVERSION	 	 	75	 
	 
	 	 	 	 	 	 
	Section 17.01.
	 	Applicability; Conversion Privilege	 	 	75	 
	Section 17.02.
	 	Conversion Procedure; Conversion Price; Fractional Shares	 	 	75	 
	Section 17.03.
	 	Adjustment of Conversion Price for Common Shares	 	 	76	 
	Section 17.04.
	 	Consolidation or Merger of the Company	 	 	78	 
	Section 17.05.
	 	Notice of Adjustment	 	 	79	 
	Section 17.06.
	 	Notice in Certain Events	 	 	79	 
	Section 17.07.
	 	Company to Reserve Shares; Registration; Listing	 	 	80	 
	Section 17.08.
	 	Taxes on Conversion	 	 	80	 
	Section 17.09.
	 	Conversion After Record Date	 	 	80	 
	Section 17.10.
	 	Company Determination Final	 	 	81	 
	Section 17.11.
	 	Trustee’s Disclaimer	 	 	81	 







iv 









 








Reconciliation and tie between Trust Indenture Act of 1939

and Indenture, dated as of _________ __, 2009




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	Sec. 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
	 
	 	(c)	 	Not Applicable
	Sec. 311
	 	(a)	 	6.13(a)
	 
	 	(b)	 	6.13(b)
	 
	 	(c)	 	Not Applicable
	Sec. 312
	 	(a)	 	7.01, 7.02(a)
	 
	 	(b)	 	7.02(b)
	 
	 	(c)	 	7.02(c)
	Sec. 313
	 	(a)	 	7.03(a)
	 
	 	(b)	 	7.03(b)
	 
	 	(c)	 	7.03(a)
	 
	 	 	 	7.03(c)
	Sec. 314
	 	(a) 	 	7.04, 12.02
	 
	 	(b)	 	Not Applicable
	 
	 	(c)(1) 	 	1.02
	 
	 	(c)(2) 	 	1.02
	 
	 	(c)(3) 	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	1.02
	Sec. 315
	 	(a) 	 	6.01(a),
	 
	 	 	 	6.01(c)
	 
	 	(b)	 	6.02,
	 
	 	 	 	7.03(a)(7)
	 
	 	(c)	 	6.01(b)
	 
	 	(d)(1) 	 	6.01(a)
	 
	 	(d)(2) 	 	6.01(c)(2)
	 
	 	(d)(3) 	 	6.01(c)(3)
	 
	 	(e)	 	5.14
	Sec. 316
	 	(a)(1)(A) 	 	5.02, 5.12
	 
	 	(a)(1)(B) 	 	5.13
	 
	 	(a)(2) 	 	Not Applicable
	 
	 	(b)	 	5.08
	 
	 	(c ) 	 	Not Applicable
	Sec. 317
	 	(a)(1) 	 	5.03
	 
	 	(a)(2)	 	5.04
	 
	 	(b)	 	12.04
	Sec. 318
	 	 	 	1.06








 




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






 









 








          INDENTURE dated as of _________ ___, 2009, between THE SCOTTS MIRACLE-GRO COMPANY, an Ohio
corporation (hereinafter called the “Company”), having its principal executive office 14111
Scottslawn Road, Marysville, Ohio 43041 and _______________________(hereinafter called the
“Trustee”), having its Corporate Trust Office at ____________________.




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 and subordinated debentures, notes, bonds or other
evidences of indebtedness (herein generally called the “Debt Securities”), to be issued in one or
more series, as in this Indenture provided.




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




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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




ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION




          Section 1.01. Definitions.




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





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




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




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles or as provided with respect
to any series of Debt Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term “generally accepted accounting
principles” or “GAAP” with respect to any computation required or permitted hereunder with
respect to any series of Debt Securities, shall mean such as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a
significant segment of the accounting profession of the United States which are in effect as of the issuance date of such
series of Debt Securities; and



 









 






     (4) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.


Certain terms, used principally in Article Three or Article Six, are defined in those respective
Articles.





     “Act” when used with respect to any Holder, has the meaning specified in Section 8.01.




     “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” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control with”) as used
with respect to any Person means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person, whether through
the ownership of voting securities, by agreement or otherwise.




     “Authenticating Agent” has the meaning specified in Section 6.14.




     “Board of Directors” means either the board of directors of the Company, or any
committee of that board duly authorized to act hereunder or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have delegated its
authority.




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




     “Business Day” when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Debt Securities means any day which is not
a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or obligated by law to
close, except as otherwise specified pursuant to Section 3.01.




     “Capital Stock” means: (i) in the case of a corporation, corporate stock (however
designated); (ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and (iv) any other interest or
participation that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.




     “Closing Price” of the Common Shares shall mean the last reported sale price of such
stock (regular way) as shown on the Composite Tape of the New York Stock Exchange (or, if
such stock is not listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or admitted to
trading), or, in case no such sale takes place on such day, the average of the closing bid
and asked prices on the New York Stock Exchange (or, if such stock is not listed or admitted
to trading on the New York Stock Exchange, on the principal national securities exchange on
which such stock is listed or admitted to trading), or, if it is not listed or admitted to
trading on any national securities exchange, the average of the closing bid and asked prices
as reported by the National Association of Securities Dealers Automated Quotation System (NASDAQ), or if such stock is not so reported, the
average of the closing bid and asked prices as furnished by any member of the National
Association of Securities Dealers, Inc., selected from time to time by the Company for that
purpose.



2









 






     “Code” means the Internal Revenue Code of 1986, as amended.




     “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 on such date.




     “Common Shares” shall mean the Common Shares, no par value, of the Company authorized
at the date of this Indenture as originally signed, or any other class of stock resulting
from successive changes or reclassifications of such Common Shares, and in any such case
including any shares thereof authorized after the date of this Indenture.




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




     “Component Currency” has the meaning specified in Section 3.10(h).




     “Conversion Agent” means any Person authorized by the Company to receive Debt
Securities to be converted into Common Shares on behalf of the Company. The Company
initially authorizes the Trustee to act as Conversion Agent for the Debt Securities on its
behalf. The Company may at any time from time to time authorize one or more Persons to act
as Conversion Agent in addition to or in place of the Trustee with respect to any series of
Debt Securities issued under this Indenture.




     “Conversion Date” has the meaning specified in Section 3.10(d).




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




     “Conversion Price” means, with respect to any series of Debt Securities which are
convertible into Common Shares, the price per share of Common Shares at which the Debt
Securities of such series are so convertible pursuant to Section 3.01 with respect to such
series, as the same may be adjusted from time to time in accordance with Section 17.03.




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




     “Currency” means Dollars or Foreign Currency.




     “Currency Determination Agent” means the agent, if any, from time to time selected by
the Trustee for purposes of Section 3.10; provided that such agent shall accept such
appointment



3









 






in writing and the terms of such appointment shall be acceptable to the Company
and shall, in the opinion of the Company and the Trustee at the time of such appointment,
require such agent to make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making of such decision or
determination.




     “Current Market Price” on any date shall mean the average of the daily Closing Prices
per share of Common Shares for any thirty (30) consecutive Trading Days selected by the
Company prior to the date in question, which thirty (30) consecutive Trading Day period
shall not commence more than forty-five (45) Trading Days prior to the day in question;
provided that with respect to Section 17.03(3), the “Current Market Price” of the Common
Shares shall mean the average of the daily Closing Prices per share of Common Shares for the
five (5) consecutive Trading Days ending on the date of the distribution referred to in
Section 17.03(3) (or if such date shall not be a Trading Day, on the Trading Day immediately
preceding such date).




     “Debt Securities” has the meaning stated in the first recital of this Indenture and
more particularly means any Debt Securities (including any Global Notes) authenticated and
delivered under this Indenture.




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




     “Depositary” means with respect to the Debt Securities of any series issuable or issued
in the form of one or more Global Notes, the Person designated as Depositary by the Company
pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more than one
such Person, “Depositary” as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Global Notes of that series.




     “Discharged” has the meaning specified in Section 15.02.




     “Discount Security” means any Debt Security which is issued with “original issue
discount” within the meaning of Section 1273(a) of the Code (or any successor provision) and
the regulations thereunder.




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




     “Dollar Equivalent of the Currency Unit” has the meaning specified in Section 3.10(g).




     “Dollar Equivalent of the Foreign Currency” has the meaning specified in Section
3.10(f).




     “Election Date” has the meaning specified in Section 3.10(h).




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




     “Exchange Act” means the Securities Exchange Act of 1934, as amended.




     “Exchange Rate Officer’s Certificate” means a telex or a certificate setting forth (i)
the applicable Market Exchange Rate and (ii) the Dollar, Foreign Currency or Currency unit
amounts



4









 






of principal, premium, if any, and any interest respectively (on an aggregate basis
and on the basis of a Debt Security having the lowest denomination principal amount
determined in accordance with Section 3.02 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate sent (in the case of a telex) or signed
(in the case of a certificate) by the Treasurer or any Assistant Treasurer of the Company.




     “Fixed Rate Security” means a Debt Security which provides for the payment of interest
at a fixed rate.




     “Floating Rate Security” means a Debt Security which provides for the payment of
interest at a variable rate determined periodically by reference to an interest rate index
or any other index specified pursuant to Section 3.01.




     “Foreign Currency” mean any coin, currency, currency unit or composite currency,
including, without limitation, the euro, issued by the government of one or more countries,
other than the United States, or by any internationally recognized union, confederation or
association of such governments.




     “Global Note” means with respect to any series of Debt Securities issued hereunder, a
Debt Security (in either temporary or permanent form) which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture and any indentures supplemental hereto,
or resolution of the Board of Directors and set forth in an Officer’s Certificate, which
shall be registered in the name of the Depositary or its nominee and which shall represent,
and shall be denominated in an amount equal to the aggregate principal amount of, all the
Outstanding Debt Securities of such series or any portion thereof, in either case having the
same terms, including, without limitation, the same original issue date, date or dates on
which principal is due and interest rate or method of determining interest.




     “Holder,” “Holder of Debt Securities” or other similar terms, means, with respect to a
Debt Security, the Registered Holder.




     “Indenture” means this instrument as originally executed, or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and, unless the context otherwise requires,
shall include the terms of a particular series of Debt Securities as established pursuant to
Section 3.01.




     The term “interest,” when used with respect to a Discount Security which by its terms
bears interest only on a certain date, means interest payable after such date.




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




     “Market Exchange Rate” means the noon Dollar buying rate in The City of New York for
cable transfers of such currency or currencies as published by the Federal Reserve Bank of
New York as of the most recent available date. If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or
quotations from one or more major banks in The City of New York or in the country of issue
of the currency in question, which for purposes of the euro shall be any member state of the
European Union that has adopted the euro, as the Trustee shall deem appropriate.



5









 






     “Maturity” when used with respect to any Debt Security means the date on which the
principal of such Debt 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, repayment or repurchase at the option of the Holder
thereof or otherwise.




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




     “Opinion of Counsel” means a written opinion of counsel, who may be counsel to the
Company (including an employee of the Company) and who shall be satisfactory to the Trustee,
which is delivered to the Trustee.




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




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




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




     (iii) Debt Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Debt Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Debt Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company;




provided, however, that in determining whether the Holders of the requisite principal amount
of Debt Securities Outstanding have performed any Act hereunder, Debt Securities owned by
the Company or any other obligor upon the Debt Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding (provided, that
in connection with any offer by the Company or any obligor to purchase Debt Securities, Debt
Securities rendered by a Holder shall be Outstanding until the date of purchase), except
that, in determining whether the Trustee shall be protected in relying upon any such Act,
only Debt Securities which the Trustee knows to be so owned shall be so disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to act with
respect to such Debt
Securities and that the pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor. In determining whether
the Holders of the requisite principal amount of Outstanding Debt Securities have performed
any Act hereunder, the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose shall be the amount of the principal thereof that would be due
and payable as of the date



6









 






of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02 and the principal amount of a Debt Security
denominated in a Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 3.10(j).




     “Overdue Rate” when used with respect to any series of the Debt Securities, means the
rate designated as such in or pursuant to the Board Resolution or the supplemental
indenture, as the case may be, relating to such series as contemplated by Section 3.01.




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




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




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




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




     “Redemption Date” when used with respect to any Debt Security to be redeemed, means the
date fixed for redemption by or pursuant to this Indenture, including pursuant to the Board
Resolution or supplemental indenture relating to such Debt Security as contemplated by
Section 3.01.




     “Redemption Price” means, in the case of a Discount Security, the amount of the
principal thereof that would be due and payable as of the Redemption Date upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02, and in the case of any
other Debt Security, the principal amount thereof, plus, in each case, premium, if any, and
accrued and unpaid interest, if any, to the Redemption Date.




     “Registered Holder” means the Person in whose name a Registered Security is registered
in the Security Register.




     “Registered Security” means any Debt Security in the form established pursuant to
Section 2.01 which is registered as to principal and interest in the Security Register.




     “Regular Record Date” for the interest payable on the Registered Securities of any
series on any Interest Payment Date means the date specified for the purpose pursuant to
Section 3.01 for such Interest Payment Date.




     “Responsible Officer” when used with respect to the Trustee means any vice president,
the secretary, any assistant secretary or any assistant vice president or any other officer
of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust
matter, any other




7











 






officer to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.




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




     “Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest
on (i) indebtedness of the Company, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed or guaranteed, for money borrowed (other than the
indebtedness evidenced by the Debt Securities of any series), unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding it is provided
that such indebtedness is not senior or prior in right of payment to the Debt Securities,
and (ii) renewals, extensions, modifications and refundings of any such indebtedness.




     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 3.07.




     “Specified Amount” has the meaning specified in Section 3.10(h).




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




     “Subsidiary” means, with respect to any Person, (i) any corporation, association, or
other business entity (other than a partnership) of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the
time of determination owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person or a combination thereof and (ii) any
partnership of which more than 50% of the partnership’s capital accounts, distribution
rights or general or limited partnership interests are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that Person or a
combination thereof.




     “Trading Day” shall mean, with respect to the Common Shares, so long as the Common
Shares are listed or admitted to trading on the New York Stock Exchange, a day on which the
New York Stock Exchange is open for the transaction of business, or, if the Common Shares
are not listed or admitted to trading on the New York Stock Exchange, a day on which the
principal national securities exchange on which the Common Shares are listed is open for the
transaction of business, or, if the Common Shares are not so listed or admitted for trading
on any national securities exchange, a day on which NASDAQ is open for the transaction of
business.




     “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 Debt Securities of any series shall mean the Trustee
with respect to Debt Securities of such series.



8









 






     “Trust Indenture Act” means the Trust Indenture Act of 1939 as amended and as in force
at the date as of which this instrument was executed, and, to the extent required by law, as
amended.




     “United States” means the United States of America (including the States and the
District of Columbia), and its possessions, which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.




     “U.S. Government Obligations” has the meaning specified in Section 15.02.




     “Valuation Date” has the meaning specified in Section 3.10(c).




     “Vice President” includes with respect to the Company and the Trustee, any Vice
President of the Company or the Trustee, as the case may be, whether or not designated by a
number or word or words added before or after the title “Vice President.”




     Section 1.02. Compliance Certificates and Opinions.



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




          Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than certificates provided pursuant to Section 12.02) shall include:





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




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




     (3) a statement that, in the opinion of each such individual, he 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




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




          Section 1.03. Form of Documents Delivered to Trustee.




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




9









 








          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.




          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. Notices, etc., to Trustee and Company.




          Any Act of Holders or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,





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




     (2) 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 mailed, first-class
postage prepaid or airmail postage prepaid if sent from outside the United States, to the
Company addressed to it at the address of its principal office specified in the first
paragraph of this instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.



          Any such Act or other document shall be in the English language, except that any published
notice may be in an official language of the country of publication.




          Section 1.05. Notice to Holders; Waiver.




          When this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given to Registered Holders (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to such Registered Holders as their names and addresses
appear in the Security Register, within the time prescribed; provided, however,
that, in any case, any notice to Holders of Floating Rate Securities regarding the determination of
a periodic rate of interest, if such notice is required pursuant to Section 3.01, shall be
sufficiently given if given in the manner specified pursuant to Section 3.01.




          In the event of suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice by mail, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.




          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



10









 






filing shall not be a condition precedent to the validity of any action taken in reliance on
such waiver. In any case where notice to Holders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case where notice to
Holders is given by publication, any defect in any notice so published as to any particular Holder
shall not affect the sufficiency of such notice with respect to other Holders, and any notice which
is published in the manner herein provided shall be conclusively presumed to have been duly given.




          Section 1.06. Conflict with Trust Indenture Act.




          If any provision hereof limits, qualifies or conflicts with the duties imposed on any Person
by the provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.




          Section 1.07. Effect of Headings and Table of Contents.




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




          Section 1.08. Successors and Assigns.




          All covenants and agreements in this Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their permitted successors and
assigns, whether so expressed or not.




          Section 1.09. Separability Clause.




          In case any provision in this Indenture or in the Debt 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 1.10. Benefits of Indenture.




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




          Section 1.11. Governing Law.




          This Indenture and the Debt Securities shall be governed by and construed in accordance with
the laws of the State of New York.




          Section 1.12. Legal Holidays.




          Unless otherwise specified pursuant to Section 3.01 or in any Debt Security, in any case where
any Interest Payment Date, Redemption Date or Stated Maturity of any Debt Security of any series
shall not be a Business Day at any Place of Payment for the Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt Securities) payment of
principal (and premium, if any) or interest need not be made at such Place of Payment on such date,
but may be



11









 






made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such Business Day if such payment
is made or duly provided for on such Business Day.




          Section 1.13. No Security Interest Created.




          Nothing in this Indenture or in the Debt Securities, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.




          Section 1.14. Liability Solely Corporate.




          No recourse shall be had for the payment of the principal of (or premium, if any) or the
interest on any Debt Securities, or any part thereof, or of the indebtedness represented thereby,
or upon any obligation, covenant or agreement of this Indenture, against any incorporator, or
against any shareholder, officer or director, as such, past, present or future, of the Company (or
any incorporator, shareholder, officer or director of any predecessor or successor corporation),
either directly or through the Company (or any such predecessor or successor corporation), whether
by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Debt
Securities are solely corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any such incorporator, shareholder, officer or director, past, present or
future, of the Company (or any incorporator, shareholder, officer or director of any such
predecessor or successor corporation), either directly or indirectly through the Company or any
such predecessor or successor corporation, because of the indebtedness hereby authorized or under
or by reason of any of the obligations, covenants, promises or agreements contained in this
Indenture or in any of the Debt Securities or to be implied herefrom or therefrom; and that any
such personal liability is hereby expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the issue of Debt Securities;
provided, however, that nothing herein or in the Debt Securities contained shall be
taken to prevent recourse to and the enforcement of the liability, if any, of any shareholder or
subscriber to capital stock upon or in respect of the shares of capital stock not fully paid.




ARTICLE TWO




DEBT SECURITY FORMS




          Section 2.01. Forms Generally.




          The Debt Securities of each series shall be substantially in one of the forms (including
global form) established in or pursuant to a Board Resolution or one or more indentures
supplemental hereto, and shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements placed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange on which any series of the Debt Securities
may be listed, or to conform to usage, all as determined by the officers executing such Debt
Securities as conclusively evidenced by their execution of such Debt Securities. If the form of a
series of Debt Securities (or any Global Note) is



12









 






established in or pursuant to a Board Resolution, a copy of such Board Resolution shall be
delivered to the Trustee, together with an Officers’ Certificate setting forth the form of such
series, at or prior to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Debt Securities (or any such Global Note).




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




          Section 2.02. Form of Trustee’s Certificate of Authentication.




          The form of the Trustee’s certificate of authentication to be borne by the Debt Securities
shall be substantially as follows:




          TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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




	 	 	 	 	 
	 	 	 
	 
	 	 	 
	 
	 
	 	By  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



          Section 2.03. Securities in Global Form.




          If any Debt Security of a series is issuable in global form (a “Global Note”), such Global
Note may provide that it shall represent the aggregate amount of Outstanding Debt Securities from
time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made by the Trustee and in such manner as
shall be specified in such Global Note. Any instructions by the Company with respect to a Global
Note, after its initial issuance, shall be in writing but need not comply with Section 1.02.




          Global Notes may be issued in either temporary or permanent form. Permanent Global Notes will
be issued in definitive form.




ARTICLE THREE




THE DEBT SECURITIES




          Section 3.01. Amount Unlimited; Issuable in Series.




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




13









 








          The Debt Securities may be issued in one or more series. There shall be established in or
pursuant to a Board Resolution and (subject to Section 3.03) set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Debt
Securities of any series:






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




     (2) the aggregate principal amount of such series of Debt Securities and any limit, on
the aggregate principal amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for Debt Securities authenticated
and delivered upon transfer of, or in exchange for, or in lieu of, other Debt Securities of
such series pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07);




     (3) the percentage of the principal amount at which Debt Securities of such series will
be issued and, if other than the principal amount thereof, the portion of the principal
amount thereof payable upon declaration of acceleration of the maturity or upon redemption
thereof or the method by which such portion shall be redeemable;




     (4) the date or dates on which or periods during which the Debt Securities of the
series may be issued, and the date or dates or the method by which such date or dates will
be determined, on which the principal of (and premium, if any, on) the Debt Securities of
such series are or may be payable (which, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company from time to time as set forth in
the Debt Securities of the series issued from time to time);




     (5) the rate or rates (which may be variable or fixed) at which the Debt Securities of
the series shall bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest, if any, shall accrue or the method
by which such date or dates shall be determined (which, in either case or both, if so
provided in such Board Resolution or supplemental indenture, may be determined by the
Company from time to time and set forth in the Debt Securities of the series issued from
time to time); and the Interest Payment Dates on which such interest shall be payable (or
the method of determination thereof), and the Regular Record Dates, if any, for the interest
payable on such Interest Payment Dates and the notice, if any, to Holders regarding the
determination of interest, the manner of giving such notice, the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day months and any
conditions or contingencies as to the payment of interest in cash or otherwise, if any;




     (6) the place or places, if any, in addition to or instead of the Corporate Trust
Office of the Trustee, where the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable; the extent to which, or the manner in which, any
interest payable on any Global Note on an Interest Payment Date will be paid, if other than
in the manner provided in Section 3.07; and the manner in which any principal of, or
premium, if any, on, any Global Note will be paid, if other than as set forth elsewhere
herein and whether any Global Note will require any notation to evidence payment of
principal or interest;




     (7) the obligation, if any, of the Company to redeem, repay, purchase or offer to
purchase Debt Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or upon other conditions or at the option of the Holder thereof and the
period or periods within which or the dates on which, the prices at which and the terms and



14









 






conditions upon which the Debt Securities of the series shall be redeemed, repaid,
purchased or offered to be purchased, in whole or in part, pursuant to such obligation;




     (8) the right, if any, of the Company to redeem the Debt Securities of such series at
its option and the period or periods within which, or the date or dates on which, the price
or prices at which, and the terms and conditions upon which such Debt Securities may be
redeemed, if any, in whole or in part, at the option of the Company or otherwise;




     (9) if the Currency in which the Debt Securities shall be issuable is in Dollars, the
denominations of such Debt Securities if other than denominations of $1,000 and any integral
multiple thereof (except as provided in Section 3.04);




     (10) whether the Debt Securities of the series are to be issued as Discount Securities
and the amount of discount with which such Debt Securities may be issued and, if other than
the principal amount thereof, the portion of the principal amount of Debt Securities of the
series which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;




     (11) provisions, if any, for the defeasance or discharge of certain of the Company’s
obligations with respect to Debt Securities of the series;




     (12) whether provisions for payment of additional amounts or tax redemptions shall
apply and, if such provisions shall apply, such provisions;




     (13) if other than Dollars, the Foreign Currency or Currencies in which Debt Securities
of the series shall be denominated or in which payment of the principal of (and premium, if
any) and interest on the Debt Securities of the series may be made, and the particular
provisions applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or its proxy to one vote
for purposes of Section 9.05;




     (14) if the principal of (and premium, if any) or interest on Debt Securities of the
series are to be payable, at the election of the Company or a Holder thereof, in a Currency
other than that in which the Debt Securities are denominated or payable without such
election, in addition to or in lieu of the provisions of Section 3.10, the period or periods
within which and the terms and conditions upon which, such election may be made and the time
and the manner of determining the exchange rate or rates between the Currency or Currencies
in which the Debt Securities are denominated or payable without such election and the
Currency or Currencies in which the Debt Securities are to be paid if such election is made;




     (15) the date as of which any Debt Securities of the series shall be dated, if other
than as set forth in Section 3.03;




     (16) if the amount of payments of principal of (and premium, if any) or interest on the
Debt Securities of the series may be determined with reference to an index, including, but
not limited to, an index based on a Currency or Currencies other than that in which the Debt
Securities are denominated or payable, or any other type of index, the manner in which such
amounts shall be determined;



15









 






     (17) if the Debt Securities of the series are denominated or payable in a Foreign
Currency, any other terms concerning the payment of principal of (and premium, if any) or
any interest on such Debt Securities (including the Currency or Currencies of payment
thereof);




     (18) the designation of the original Currency Determination Agent, if any;




     (19) the applicable Overdue Rate, if any;




     (20) if the Debt Securities of the series do not bear interest, the applicable dates
for purposes of Section 7.01;




     (21) any addition to, or modification or deletion of, any Events of Default, covenants
or term of the subordination provided for with respect to Debt Securities of the series;




     (22) whether the Debt Securities of the series shall be issued in whole or in part in
the form of one or more Global Notes and, in such case, the Depositary for such Global Note
or Notes; and if the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global Notes representing
Debt Securities of the series may be exchanged for Registered Securities in definitive form,
if other than, or in addition to, the manner and circumstances specified in Section 3.04(b);




     (23) the designation, if any, of any depositaries, trustees (other than the applicable
Trustee), Paying Agents, Authenticating Agents, Security Registrars (other than the Trustee)
or other agents with respect to the Debt Securities of such series;




     (24) if the Debt Securities of such series will be issuable in definitive form only
upon receipt of certain certificates or other documents or upon satisfaction of certain
conditions, the form and terms of such certificates, documents or conditions;




     (25) whether the Debt Securities of such series will be convertible into shares of
Common Shares and, if so, the terms and conditions, which may be in addition to or in lieu
of the provisions contained herein, upon which such Debt Securities will be so convertible,
including the conversion price and the conversion period;




     (26) the portion of the principal amount of the Debt Securities which will be payable
upon declaration of acceleration of the maturity thereof, if other than the principal amount
thereof;




     (27) the nature, content and date for reports by the Company to the holders of the
Offered Debt Securities;




     (28) any change in the right of the Trustee or the Holders to declare the principal of,
and premium and interest on, such Debt Securities due and payable; and




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



          All Debt Securities of any one series shall be substantially identical except as to
denomination, rate of interest, Stated Maturity and the date from which interest, if any, shall
accrue, which, as set forth above, may be determined by the Company from time to time as to Debt
Securities of a series if so provided in or established pursuant to the authority granted in a
Board Resolution or in any



16









 






such indenture supplemental hereto, and except as may otherwise be provided in or pursuant to
such Board Resolution and (subject to Section 3.03) set forth in such Officers’ Certificate, or in
any such indenture supplemental hereto. All Debt Securities of any one series need not be issued at
the same time, and unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.




          If any of the terms of a series of Debt Securities is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of the series.




          Section 3.02. Denominations.




          In the absence of any specification pursuant to Section 3.01 with respect to the Debt
Securities of any series, the Debt Securities of such series shall be issuable only as Registered
Securities in denominations of $1,000 and any integral multiple thereof and shall be payable only
in Dollars.




          Section 3.03. Execution, Authentication, Delivery and Dating.




          The Debt Securities of any series shall be executed on behalf of the Company by its Chairman
of the Board, Chief Executive Officer, President, Chief Financial Officer, one of its Vice
Presidents or its Treasurer, under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these officers may be manual
or facsimile.




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




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Debt Securities of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such Debt
Securities and the Trustee in accordance with the Company Order shall authenticate and deliver such
Debt Securities. If all the Debt Securities of any one series are not to be issued at one time and
if a Board Resolution or supplemental indenture relating to such series shall so permit, such
Company Order may set forth procedures acceptable to the Trustee for the issuance of such Debt
Securities such as interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue. If any Debt Security shall be represented by a permanent Global Note, then,
for purposes of this Section and Section 3.04, the notation of a beneficial owner’s interest
therein upon original issuance of such Debt Security or upon exchange of a portion of a temporary
Global Note shall be deemed to be delivery in connection with the original issuance of such
beneficial owner’s interest in such permanent Global Note.




          The Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully
protected in relying upon, prior to the authentication and delivery of the Debt Securities of such
series, (i) the supplemental indenture or the Board Resolution by or pursuant to which the form and
terms of such Debt Securities have been approved and (ii) an Opinion of Counsel substantially to
the effect that:





     (1) all instruments furnished by the Company to the Trustee in connection with the
authentication and delivery of such Debt Securities conform to the requirements of this
Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and
deliver such Debt Securities;



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




     (3) in the event that the forms or terms of such Debt Securities have been established
in a supplemental indenture, the execution and delivery of such supplemental indenture has
been duly authorized by all necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and binding obligation
enforceable against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);




     (4) the execution and delivery of such Debt Securities have been duly authorized by all
necessary corporate action of the Company and such Debt Securities have been duly executed
by the Company and, assuming due authentication by the Trustee and delivery by the Company,
are valid and binding obligations enforceable against the Company in accordance with their
terms, entitled to the benefit of the Indenture, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and subject to such other exceptions as counsel shall
request and as to which the Trustee shall not reasonably object; and




     (5) the amount of Debt Securities Outstanding of such series, together with the amount
of such Debt Securities, does not exceed any limit established under the terms of this
Indenture on the amount of Debt Securities of such series that may be authenticated and
delivered.



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




          Each Registered Security shall be dated the date of its authentication.




          No Debt Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Debt Security a certificate of
authentication substantially in one of the forms provided for herein duly executed by the Trustee
or by an Authenticating Agent, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any
Debt Security shall have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security to the Trustee for cancellation as
provided in Section 3.08 together with a written statement (which need not comply with Section
1.02) stating that such Debt Security has never been issued and sold by the Company, for all
purposes of this Indenture such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.




          Section 3.04. Temporary Debt Securities; Global Notes Representing Registered
Securities.




          (a) Pending the preparation of definitive Registered Securities of any series, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver, temporary



18









 






Registered Securities which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination for Registered Securities of such series, substantially of
the tenor of the definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing
such Registered Securities may determine, as conclusively evidenced by their execution of such
Registered Securities. Every such temporary Registered Security shall be executed by the Company
and shall be authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive Registered Securities in
lieu of which they are issued.




          If temporary Debt Securities of any series are issued, the Company will cause definitive Debt
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series, of a like Stated Maturity and with like
terms and provisions, upon surrender of the temporary Debt Securities of such series at the office
or agency of the Company in a Place of Payment for such series, without charge to the Holder,
except as provided in Section 3.05 in connection with a transfer. Upon surrender for cancellation
of any one or more temporary Debt Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Debt Securities of the same series of authorized denominations and of a like Stated Maturity and
like terms and provisions. Until so exchanged, the temporary Registered Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.




          (b) If the Company shall establish pursuant to Section 3.01 that the Registered Securities of
a series are to be issued in whole or in part in the form of one or more Global Notes, then the
Company shall execute and the Trustee shall, in accordance with Section 3.03 and the Company Order
with respect to such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Debt Securities of such series to be represented by
one or more Global Notes, (ii) shall be registered in the name of the Depositary for such Global
Note or Notes or the nominee of such depositary, (iii) shall be delivered by the Trustee to such
Depositary or delivered or held pursuant to such Depositary’s instructions, and (iv) shall bear a
legend substantially to the following effect: “This Debt Security may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary, unless and until this Debt Security
is exchanged in whole or in part for Debt Securities in definitive form.”




          Each Depositary designated pursuant to Section 3.01 must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act
and any other applicable statute or regulation.




          Notwithstanding any other provision of this Section or Section 3.05, unless and until a Global
Note is exchanged in whole or in part for Registered Securities in definitive form, a Global Note
representing all or a portion of the Registered Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor Depositary for such series or a nominee of such successor
Depositary.




          If at any time the Depositary for the Debt Securities of a series notifies the Company that it
is unwilling or unable to continue as Depositary for the Debt Securities of such series or if at
any time the Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good



19









 






standing under the Exchange Act, or other applicable statute or regulation (as required by
this Section 3.04), the Company shall appoint a successor Depositary eligible under this Section
3.04 with respect to the Debt Securities of such series. If a successor Depositary for the Debt
Securities of such series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive Debt Securities of
such series, will authenticate and deliver, Registered Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.




          The Company may at any time and in its sole discretion determine that the Registered
Securities of any series issued in the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Registered Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.




          If the Registered Securities of any series shall have been issued in the form of one or more
Global Notes and if an Event of Default with respect to the Debt Securities of such series shall
have occurred and be continuing, the Company will promptly execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.




          If specified by the Company pursuant to Section 3.01 with respect to Registered Securities of
a series, the Depositary for such series of Registered Securities may surrender a Global Note for
such series of Debt Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and such depositary.
Thereupon, the Company shall execute and the Trustee shall authenticate and deliver, without
charge:





     (i) to each Person specified by the Depositary a new Registered Security or
Securities of the same series, of any authorized denomination as requested by such
Person in an aggregate principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Note; and




     (ii) to the Depositary a new Global Note in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Note and
the aggregate principal amount of Registered Securities delivered to Holders
thereof.



          Upon the exchange of a Global Note for Registered Securities in definitive form, such Global
Note shall be cancelled by the Trustee. Debt Securities issued in exchange for a Global Note
pursuant to this subsection (b) shall be registered in such names and in such authorized
denominations as the Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt
Securities to the Persons in whose names such Debt Securities are so registered.




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          Section 3.05. Transfer and Exchange.




          (a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the registers maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein 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 Registered Securities and of transfers and exchanges of Registered Securities.
The Trustee is hereby appointed “Security Registrar” for the purpose of registering Registered
Securities and registering transfers and exchanges of Registered Securities as herein provided;
provided, however, that the Company may appoint co-Security Registrars at its
option.




          Upon surrender for registration of transfer of any Registered Security of any series at the
office or agency of the Company maintained for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new
Registered Securities of the same series of like aggregate principal amount of such denominations
as are authorized for Registered Securities of such series and of a like Stated Maturity and with
like terms and conditions.




          Except as otherwise provided in Section 3.04 and this Section 3.05, at the option of the
Holder, Registered Securities of any series may be exchanged for other Registered Securities of the
same series of like aggregate principal amount and of a like Stated Maturity and with like terms
and conditions, upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making
the exchange is entitled to receive.




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




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




          No service charge will be made for any transfer or exchange of Debt Securities except as
provided in Section 3.06. The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those expressly provided in this Indenture to be made at
the Company’s own expense or without expense or without charge to the Holders.




          The Company shall not be required (i) to register, transfer or exchange Debt Securities of any
series during a period beginning at the opening of business 15 days before the day of the
transmission of a notice of redemption of Debt Securities of such series selected for redemption
under Section 13.03 and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.




21









 








          Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.




          If (i) any mutilated Debt Security is surrendered to the Trustee at its Corporate Trust
Office, or (ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security, and there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of them and any Paying
Agent harmless, and neither the Company nor the Trustee receives notice that such Debt Security has
been acquired by a bona fide purchaser, then the Company shall execute and upon Company Request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Debt Security, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a number not
contemporaneously used with respect to any Debt Securities Outstanding.




          In case any such mutilated, destroyed, lost or stolen Debt Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Debt Security,
pay the amount due on such Debt Security in accordance with its terms.




          Upon the issuance of any new Debt 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
respect thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.




          Every new Debt Security of any series issued pursuant to this Section shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt 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 Debt Securities of
that series duly issued hereunder.




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




          Section 3.07. Payment of Interest; Interest Rights Preserved.




          (a) Interest on any Registered 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 such Registered
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless otherwise specified as
contemplated by Section 3.01 with respect to the Debt Securities of any series, payment of interest
on Registered Securities shall be made at the place or places specified pursuant to Section 3.01
or, at the option of the Company, by check mailed to the address of the Person entitled thereto as
such address appears in the Security Register or, if provided pursuant to Section 3.01, by wire
transfer to an account designated by the Registered Holder.




          (b) Any interest on any Debt Security which is payable but is not punctually paid or duly
provided for on any Interest Payment Date (herein called “Defaulted Interest”) shall, if such Debt
Security is a Registered Security, forthwith cease to be payable to the Registered Holder on the
relevant Regular Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:





22











 






     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the Currency or Currency unit in which
the Debt Securities of such series are payable (except as otherwise specified pursuant to
Sections 3.01 or 3.10) equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which date shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holders of such Registered Securities at
their addresses as they appear in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).




     (2) The Company may make payment of any Defaulted Interest on Registered Securities in
any other lawful manner not inconsistent with the requirements of any securities exchange on
which such Registered 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.



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




          Section 3.08. Cancellation.




          Unless otherwise specified pursuant to Section 3.01 for Debt Securities of any series, all
Debt Securities surrendered for payment, redemption, transfer, exchange or credit against any
sinking fund shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Registered Securities so delivered shall be promptly cancelled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Debt 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 Debt Securities previously authenticated hereunder which the Company has not
issued, and all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities held by the Trustee shall be delivered to the Company upon Company Request. The
acquisition of any Debt Securities by the Company shall not operate as a redemption or satisfaction
of the indebtedness represented thereby unless and until such Debt Securities are surrendered to
the



23









 






Trustee for cancellation. Permanent Global Notes shall not be destroyed until exchanged in
full for definitive Debt Securities or until payment thereon is made in full.




          Section 3.09. Computation of Interest.




          Except as otherwise specified pursuant to Section 3.01 for Debt Securities of any series,
interest on the Debt Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.




          Section 3.10. Currency of Payments in Respect of Debt Securities.




          (a) With respect to Registered Securities of any series not permitting the election provided
for in paragraph (b) below or the Holders of which have not made the election provided for in
paragraph (b) below, except as provided in paragraph (d) below, payment of the principal of (and
premium, if any) and any interest on any Registered Security of such series will be made in the
Currency in which such Registered Security is payable.




          (b) It may be provided pursuant to Section 3.01 with respect to the Registered Securities of
any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (and premium, if any) and any interest on such Registered Securities in
any of the Currencies which may be designated for such election by delivering to the Trustee a
written election, to be in form and substance satisfactory to the Trustee, not later than the close
of business on the Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such transferee by written
notice to the Trustee (but any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for the payment to be
made on such payment date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of Default has
occurred or notice of redemption has been given by the Company pursuant to Article Thirteen). Any
Holder of any such Registered Security who shall not have delivered any such election to the
Trustee by the close of business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (a) of this Section 3.10.




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




24









 








          (d) If a Conversion Event occurs with respect to a Foreign Currency, or any other Currency
unit in which any of the Debt Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each date for the
payment of principal of (and premium, if any) and any interest on the applicable Debt Securities
denominated or payable in such Foreign Currency, or such other Currency unit occurring after the
last date on which such Foreign Currency, or such other Currency unit was used (the “Conversion
Date”), the Dollar shall be the Currency of payment for use on each such payment date. The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the
Holders of such Debt Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a Currency unit, the Dollar Equivalent of the Currency
Unit, in each case as determined by the Currency Determination Agent, if any, or, if there shall
not be a Currency Determination Agent, then by the Trustee, in the manner provided in paragraph (f)
or (g) below.




          (e) If the Holder of a Registered Security denominated in any Currency shall have elected to
be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with
respect to such elected Currency, such Holder shall receive payment in the Currency in which
payment would have been made in the absence of such election. If a Conversion Event occurs with
respect to the Currency in which payment would have been made in the absence of such election, such
Holder shall receive payment in Dollars as provided in paragraph (d) of this Section 3.10.




          (f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Currency
Determination Agent, if any, or, if there shall not be a Currency Determination Agent, then by the
Trustee, and shall be obtained for each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.




          (g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Currency
Determination Agent, if any, or, if there shall not be a Currency Determination Agent, then by the
Trustee, and subject to the provisions of paragraph (h) below, shall be the sum of each amount
obtained by converting the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.




          (h) For purposes of this Section 3.10 the following terms shall have the following meanings:





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




     A “Specified Amount” of a Component Currency shall mean the number of units of such
Component Currency or fractions thereof which were represented in the relevant Currency unit
on the Conversion Date. If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be replaced by an amount
in such single Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be divided into two or
more Currencies, the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more Currencies with appropriate Dollar equivalents at the Market
Exchange Rate on the date of such replacement equal to the Dollar equivalent of the
Specified Amount of such former



25









 






Component Currency at the Market Exchange Rate on such date, and such amounts shall
thereafter be Specified Amounts and such Currencies shall thereafter be Component
Currencies. If after the Conversion Date of the relevant Currency unit a Conversion Event
(other than any event referred to above in this definition of “Specified Amount”) occurs
with respect to any Component Currency of such Currency unit, the Specified Amount of such
Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date
of such Component Currency.




     “Election Date” shall mean the record date with respect to any payment date, and with
respect to the Maturity shall mean the record date (if within 16 or fewer days prior to the
Maturity) immediately preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is more than 16 days prior
to the Maturity or any series of Debt Securities for which no record dates are provided with
respect to interest payments, shall mean the date which is 16 days prior to the Maturity.



          (i) All decisions and determinations of the Trustee or the Currency Determination Agent, if
any, regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit and the Market Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the Company and all
Holders of the Debt Securities denominated or payable in the relevant Currency. In the event of a
Conversion Event with respect to a Foreign Currency, the Company, after learning thereof, will
immediately give written notice thereof to the Trustee (and the Trustee will promptly thereafter
give notice in the manner provided in Section 1.05 to the Holders) specifying the Conversion Date.
In the event of a Conversion Event with respect to any Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately give notice thereof
to the Trustee (and the Trustee will promptly thereafter give written notice in the manner provided
in Section 1.05 to the Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above, the Company, after learning
thereof, will similarly give written notice to the Trustee. The Trustee shall be fully justified
and protected in relying and acting upon information received by it from the Company and the
Currency Determination Agent, if any, and shall not otherwise have any duty or obligation to
determine such information independently.




          (j) For purposes of any provision of the Indenture where the Holders of Outstanding Debt
Securities may perform an Act which requires that a specified percentage of the Outstanding Debt
Securities of all series perform such Act and for purposes of any decision or determination by the
Trustee of amounts due and unpaid for the principal (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably, the principal of
(and premium, if any) and interest on the Outstanding Debt Securities denominated in a Foreign
Currency will be the amount in Dollars based upon the Market Exchange Rate for Debt Securities of
such series, as of the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the Trustee, as the case may
be.




          Section 3.11. Judgments.




          If for the purpose of obtaining a judgment in any court with respect to any obligation of the
Company hereunder or under any Debt Security, it shall become necessary to convert into any other
Currency any amount in the Currency due hereunder or under such Debt Security, then such conversion
shall be made at the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such judgment, conversion shall
be made



26









 






on a date other than the date payment is made and there shall occur a change between such
Market Exchange Rate and the Market Exchange Rate as in effect on the date of payment, the Company
agrees to pay such additional amounts (if any) as may be necessary to ensure that the amount paid
is equal to the amount in such other Currency which, when converted at the Market Exchange Rate as
in effect on the date of payment or distribution, is the amount then due hereunder or under such
Debt Security. Any amount due from the Company under this Section 3.11 shall be due as a separate
debt and is not to be affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the Company be required
to pay more in the Currency or Currency unit due hereunder or under such Debt Security at the
Market Exchange Rate as in effect when payment is made than the amount of Currency stated to be due
hereunder or under such Debt Security so that in any event the Company’s obligations hereunder or
under such Debt Security will be effectively maintained as obligations in such Currency, and the
Company shall be entitled to withhold (or be reimbursed for, as the case may be) any excess of the
amount actually realized upon any such conversion over the amount due and payable on the date of
payment or distribution.




          Section 3.12. Exchange Upon Default.




          If default is made in the payments referred to in Section 12.01, the Company hereby undertakes
that upon presentation and surrender of a permanent Global Note to the Trustee (or to any other
Person or at any other address as the Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the Trustee will authenticate and
deliver to the Holder of such permanent Global Note duly executed and authenticated definitive Debt
Securities with the same issue date and maturity date as set out in such permanent Global Note.




          Section 3.13. CUSIP and ISN Numbers.




          The Company in issuing the Debt Securities may use “CUSIP” and “ISN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” and “ISN” 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 accuracy of such numbers either as printed on the Debt Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly notify the
Trustee in writing of any change in the “CUSIP” or “ISN” numbers.




ARTICLE FOUR




SATISFACTION AND DISCHARGE




          Section 4.01. Satisfaction and Discharge of Indenture.




          This Indenture, with respect to the Debt Securities of any series (if all series issued under
this Indenture are not to be affected), shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of such Debt Securities
herein expressly provided for and rights to receive payments of principal (and premium, if any) and
interest on such Debt Securities) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture, when




          (1) Either




27









 









     (A) all Debt Securities of such series theretofore authenticated and delivered (other
than (i) Debt Securities of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, and (ii) Debt 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 12.04) have been delivered to the Trustee for cancellation; or




     (B) all Debt Securities of such series not theretofore delivered to the Trustee for
cancellation,




          (i) have become due and payable, or




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




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




and the Company, either complies with any other condition or terms specified
pursuant to Section 3.01, or if not so specified in the case of (i), (ii) or (iii)
of this subclause (B), has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the Currency in which
such Debt Securities are denominated (except as otherwise provided pursuant to
Section 3.01 or 3.10) sufficient to pay and discharge the entire indebtedness on
such Debt Securities for principal (and premium, if any) and interest to the date of
such deposit (in the case of Debt Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law, is filed with respect to the Company
within 91 days after the deposit and the Trustee is required to return the deposited
money to the Company, the obligations of the Company under this Indenture with
respect to such Debt Securities shall not be deemed terminated or discharged;




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




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




     (4) the Company has delivered to the Trustee an Opinion of Counsel or a ruling by the
Internal Revenue Service to the effect that Holders of the Debt Securities of the series
will not recognize income, gain or loss for Federal income tax purposes as a result of such
deposit and discharge.


Notwithstanding the satisfaction and discharge of this Indenture, 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, the obligations of the Company under Section 12.01, and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 12.04, shall survive. If, after
the deposit referred to in


28









 






Section 4.01 has been made, (x) the Holder of a Debt Security is entitled to, and does, elect
pursuant to Section 3.10(b), to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.01 was made, or (y) if a Conversion Event occurs with respect to the Currency
in which the deposit was made or elected to be received by the Holder pursuant to Section 3.10(b),
then the indebtedness represented by such Debt Security shall be fully discharged to the extent
that the deposit made with respect to such Debt Security shall be converted into the Currency in
which such payment is made.




          Section 4.02. Application of Trust Money.




          Subject to the provisions of the last paragraph of Section 12.04, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Debt Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for
whose payment such money has been deposited with the Trustee.




ARTICLE FIVE




REMEDIES




          Section 5.01. Events of Default.




          “Event of Default” wherever used herein with respect to Debt Securities of any series means
any one of the following events (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law, pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):





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




     (2) default in the payment of the principal of (and premium, if any, on) any Debt
Security of such series at its Maturity; or




     (3) default in the deposit of any sinking fund payment, when and as due by the terms of
a Debt Security of such series; or




     (4) 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 expressly has been
included in this Indenture solely for the benefit of Debt Securities of a series other than
such series), and continuance of such default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or




     (5) the entry of a decree or order for relief in respect of the Company by a court
having jurisdiction in the premises in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or



29









 






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 other
similar official) of the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or




     (6) the commencement by the Company of a voluntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or the consent by it to the entry of an order for relief in
an involuntary case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an assignment for the benefit
of its creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or




     (7) any other Event of Default provided with respect to Debt Securities of that series
pursuant to Section 3.01.



          Section 5.02. Acceleration of Maturity; Rescission and Annulment.




          If an Event of Default with respect to Debt Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debt Securities of such series may declare the principal
amount (or, if any Debt Securities of such series are Discount Securities, such portion of the
principal amount of such Discount Securities as may be specified in the terms of such Discount
Securities) of all the Debt Securities of such series 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) plus accrued and unpaid interest (and
premium, if payable) shall become immediately due and payable. Upon payment of such amount in the
Currency in which such Debt Securities are denominated (except as otherwise provided pursuant to
Sections 3.01 or 3.10), all obligations of the Company in respect of the payment of principal of
the Debt Securities of such series shall terminate.




          At any time after such a declaration of acceleration with respect to Debt 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 a majority in principal
amount of the Outstanding Debt Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if





     (1) the Company has paid or deposited with the Trustee a sum in the Currency in which
such Debt Securities are denominated (except as otherwise provided pursuant to Section 3.01
or 3.10) sufficient to pay




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




30









 






	 	(C)	 	to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Debt Security of such series at
the Overdue Rate, 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; provided, however, that all sums
payable under this clause (D) shall be paid in Dollars;






and




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


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




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




          The Company covenants that if





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




     (2) default is made in the payment of principal of (or premium, if any, on) any Debt
Security at the Maturity thereof, or




     (3) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due pursuant to the terms of the Debt Securities
of any series,


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




          If the Company fails to pay such amount forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Debt 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 Debt Securities wherever situated.




          If an Event of Default with respect to Debt 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 Debt Securities of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any



31









 






covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.




          Section 5.04. Trustee May File Proofs of Claim.




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





          (i) to file and prove a claim for the whole amount of principal (or, if the
Debt Securities of such series are Discount Securities, such portion of the
principal amount as may be due and payable with respect to such series pursuant to a
declaration in accordance with Section 5.02) (and premium, if any) and interest
owing and unpaid in respect of the Debt Securities of such series and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of such Debt Securities allowed in such judicial proceeding, and




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


and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or other similar
official) in any such proceeding is hereby authorized by each such 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 such Holders, 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.




          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 Debt Securities of such series 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.




          Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities.




          All rights of action and claims under this Indenture or the Debt Securities of any series may
be prosecuted and enforced by the Trustee without the possession of any of such Debt 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, be for the ratable benefit of
the Holders of the Debt Securities in respect of which such judgment has been recovered.




32









 








          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 (and premium, if any) or interest, upon presentation of the Debt Securities of
any series in respect of which money has been collected 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 Debt Securities of such series, 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 Debt Securities for
principal (and premium, if any) and interest, respectively; and



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




          Section 5.07.
Limitation on Suits.




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





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




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




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




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




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


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other such Holders or of the Holders of Outstanding Debt Securities
of any other series, 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 of such Holders. For the protection and enforcement of the
provisions of this Section 5.07, each and every Holder of Debt Securities of any series and the
Trustee for such series shall be entitled to such relief as can be given at law or in equity.




33









 








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




          Notwithstanding any other provision in this Indenture, the Holder of any Debt Security shall
have the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest on such Debt Security on the respective
Stated Maturity or Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such payment and interest
thereon, and such right 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 the
Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.




          Section 5.10. Rights and Remedies Cumulative.




          Except as otherwise expressly provided elsewhere in this Indenture, 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 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 any acquiescence therein. Every right and remedy given by this Indenture 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 a majority in principal amount of the Outstanding Debt Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that





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




     (2) 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
Officer or Responsible Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Debt Securities of such series not joining
in any such direction; and



34









 






     (3) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



          Section 5.13. Waiver of Past Defaults.




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





     (1) in the payment of the principal of (or premium, if any) or interest on any Debt
Security of such series, or in the payment of any sinking fund installment or analogous
obligation with respect to the Debt Securities of such series, or




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



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




          Section 5.14. Undertaking for Costs.




          All parties to this Indenture agree, and each Holder of any Debt 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 other than the Trustee of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% in principal amount of the Outstanding Debt Securities of any series,
or to any suit instituted by any Holder of a Debt Security for the enforcement of the payment of
the principal of (or premium, if any) or interest on such Debt Security on or after the respective
Stated Maturity or Maturities expressed in such Debt Security (or, in the case of redemption, on or
after 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.




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ARTICLE SIX




THE TRUSTEE




          Section 6.01. Certain Duties and Responsibilities.




          (a) Except during the continuance of an Event of Default with respect to the Debt Securities
of any series,





     (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




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



          (b) In case an Event of Default with respect to Debt Securities of any series has occurred and
is continuing, the Trustee shall, with respect to the Debt Securities of such series, exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.




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





     (1) this subsection shall not be construed to limit the effect of subsection (a) of
this Section;




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




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




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



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          (d) 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 Debt Securities
of any series, the Trustee shall give notice to all Holders of Debt Securities of such series of
such default hereunder known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such series or in the payment
of any sinking fund installment with respect to Debt Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the Holders of Debt
Securities of such series; and provided, further, that in the case of any default
of the character specified in Section 5.01(4) with respect to Debt Securities of such series no
such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term “default” means any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to Debt Securities of such series.




          Notice given pursuant to this Section 6.02 shall be transmitted by mail:





     (1) to all Registered Holders, as the names and addresses of the Registered Holders
appear in the Security Register; and




     (2) to each Holder of a Debt Security of any series whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section 7.02(a) of
this Indenture.



          Section 6.03. Certain Rights of Trustee.




          Except as otherwise provided in Section 6.01:




          (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, 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 shall 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 Officers’ Certificate;




          (d) the Trustee may consult with counsel 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;




37









 








          (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 of Debt Securities of any
series pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;




          (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, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and




          (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent (including any agent
appointed pursuant to Section 3.10(i)) or attorney appointed with due care by it hereunder.




          Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities.




          The recitals contained herein and in the Debt 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 Debt Securities of any series. The Trustee shall not be
accountable for the use or application by the Company of any Debt Securities or the proceeds
thereof.




          Section 6.05. May Hold Debt Securities.




          The Trustee, any Paying Agent, the Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of Debt Securities, and,
subject to Sections 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 in any Currency 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. Neither the Trustee nor any
Paying Agent shall be under any liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.




          Section 6.07. Compensation and Reimbursement.




          The Company agrees:





     (1) to pay to the Trustee from time to time reasonable compensation in Dollars 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);




     (2) 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



38









 






Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and




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



          As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a claim prior to the Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of amounts due on the
Debt Securities.




          The obligations of the Company under this Section 6.07 to compensate and indemnify the Trustee
for expenses, disbursements and advances shall constitute additional indebtedness under this
Indenture and shall survive the satisfaction and discharge of this Indenture.




          Section 6.08. Disqualification; Conflicting Interests.




          (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section
with respect to the Debt Securities of any series, then, within 90 days after ascertaining that it
has such conflicting interest, and if the default (as hereinafter defined) to which such
conflicting interest relates has not been cured or duly waived or otherwise eliminated before the
end of such 90-day period, the Trustee shall either eliminate such conflicting interest or, except
as otherwise provided below, resign with respect to the Debt Securities of such series, and the
Company shall take prompt steps to have a successor appointed, in the manner and with the effect
hereinafter specified in this Article.




          (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a)
of this Section with respect to the Debt Securities of any series, the Trustee shall, within 10
days after the expiration of such 90-day period, transmit to all Holders of Debt Securities of such
series notice of such failure.




          Notice given pursuant to this Section 6.08(b) shall be transmitted by mail:





     (1) to all Registered Holders, as the names and addresses of the Registered Holders
appear in the Security Register; and




     (2) to each Holder of a Debt Security of any series whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section 7.02(a) of
this Indenture.



          (c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting
interest with respect to the Debt Securities of any series, if there shall exist an Event of
Default (as such term is defined herein, but exclusive of any period of grace or requirement of
notice) with respect to such Debt Securities and





     (1) the Trustee is trustee under this Indenture with respect to the Outstanding Debt
Securities of any series other than that series or is trustee under another indenture under
which any other securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, unless such other indenture is a collateral
trust indenture under which



39









 






the only collateral consists of Debt Securities issued under this Indenture, provided
that there shall be excluded from the operation of this paragraph this Indenture with
respect to the Debt Securities of any series other than that series and any other indenture
or indentures under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if




          (i) this Indenture and such other indenture or indentures (and all series of
securities issuable thereunder) are wholly unsecured and rank equally and such other
indenture or indentures are hereafter qualified under the Trust Indenture Act,
unless the Commission shall have found and declared by order pursuant to Section
305(b) or Section 307(c) of the Trust Indenture Act that differences exist between
the provisions of this Indenture with respect to the Debt Securities of such series
and one or more other series or the provisions of such other indenture or indentures
which are so likely to involve a material conflict of interest as to make it
necessary, in the public interest or for the protection of investors to disqualify
the Trustee from acting as such under this Indenture with respect to the Debt
Securities of such series and such other series or under such other indenture or
indentures, or




          (ii) the Company shall have sustained the burden of proving, on application to
the Commission and after opportunity for hearing thereon, that trusteeship under
this Indenture with respect to the Debt Securities of such series and such other
series or such other indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such under this
Indenture with respect to the Debt Securities of such series and such other series
or under such other indenture or indentures;




     (2) the Trustee or any of its directors or executive officers is an underwriter for the
Company;




     (3) the Trustee directly or indirectly controls or is directly or indirectly controlled
by or is under direct or indirect common control with an underwriter for the Company;




     (4) the Trustee or any of its directors or executive officers is a director, officer,
partner, employee, appointee or representative of the Company, or of an underwriter (other
than the Trustee itself) for the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a director or an executive officer, or
both, of the Trustee and a director or an executive officer, or both, of the Company but may
not be at the same time an executive officer of both the Trustee and the Company; (ii) if
and so long as the number of directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive officer, or both, of the Trustee and
a director of the Company; and (iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent, or depositary or in any other similar capacity,
or, subject to the provisions of paragraph (l) of this subsection, to act as trustee,
whether under an indenture or otherwise;




     (5) 10% or more of the voting securities of the Trustee is beneficially owned either by
the Company or by any director, partner or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner or executive officer thereof or is
beneficially owned, collectively, by any two or more such persons;



40









 






     (6) the Trustee is the beneficial owner of, or holds as collateral security for an
obligation which is in default (as hereinafter in this subsection defined), (i) 5% or more
of the voting securities, or 10% or more of any other class of security, of the Company not
including the Debt Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of
security of an underwriter for the Company;




     (7) the Trustee is the beneficial owner of or holds as collateral security for an
obligation which is in default, 5% or more of the voting securities of any person who, to
the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control with, the Company;




     (8) the Trustee is the beneficial owner of or holds as collateral security for an
obligation which is in default, 10% or more of any class of security of any person who, to
the knowledge of the Trustee, owns 50% or more of the voting securities of the Company;




     (9) the Trustee owns, on the date of such Event of Default or any anniversary of such
Event of Default while such Event of Default remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall not apply, for a period
of not more than two years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25% of such voting securities or 25% of any
such class of security. Promptly after the dates of any such Event of Default and annually
in each succeeding year that such Event of Default continues, the Trustee shall make a check
of its holdings of such securities in any of the above-mentioned capacities as of such
dates. If the Company fails to make payment in full of the principal of (or premium, if any)
or interest on any of the Debt Securities when and as the same becomes due and payable, and
such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall be considered as though beneficially owned
by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection; or




     (10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6)
of Section 6.13(b) of this Indenture, the Trustee shall be or shall become a creditor of the
Company.



          For the purposes of paragraph (1) of this subsection, the term “series of securities” or
“series” means a series, class or group of securities issuable under an indenture pursuant to whose
terms holders of one such series may vote to direct the Trustee, or otherwise take action pursuant
to a vote of such holders, separately from holders of another series; provided, that
“series of securities” or “series” shall not include any series of securities issuable under an
indenture if all such series rank equally and are wholly unsecured.




          The specification of percentages in paragraphs (5) to (9), inclusive, of this subsection shall
not be construed as indicating that the ownership of such percentages of the securities of a person
is





41












 




or is not necessary or sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.




          For the purposes of paragraphs (6), (7), (8) and (9) of this subsection only, (i) the terms
“security” and “securities” shall include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms,
or any certificate of interest or participation in any such note or evidence of indebtedness; (ii)
an obligation shall be deemed to be “in default” when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured; and (iii) the Trustee shall not be
deemed to be the owner or holder of (A) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as defined in clause (ii) above, or
(B) any security which it holds as collateral security under this Indenture, irrespective of any
default hereunder, or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.



          (d) For the purposes of this Section:




     (1) The term “underwriter” when used with reference to the Company means every person
who, within one year prior to the time as of which the determination is made, has purchased
from the Company with a view to, or has offered or sold for the Company in connection with,
the distribution of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and customary
distributors’ or sellers’ commission.




     (2) The term “director” means any director of a corporation, or any individual
performing similar functions with respect to any organization whether incorporated or
unincorporated.




     (3) The term “person” means an individual, a corporation, a partnership, an
association, a joint stock company, a trust, an estate, an unincorporated organization, or a
government or political subdivision thereof. As used in this paragraph, the term “trust”
shall include only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.




     (4) The term “voting security” means any security presently entitling the owner or
holder thereof to vote in the direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or arrangements whereby a trustee
or trustees or agent or agents for the owner or holder of such security are presently
entitled to vote in the direction or management of the affairs of a person.




     (5) The term “Company” means any obligor upon the Debt Securities of any series.




     (6) The term “executive officer” means the president, every vice president, every trust
officer, the cashier, the secretary, and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of the board of
directors.



42









 





          (e) The percentages of voting securities and other securities specified in this Section shall
be calculated in accordance with the following provisions:




     (1) A specified percentage of the voting securities of the Trustee, the Company or any
other person referred to in this Section (each of whom is referred to as a “person” in this
paragraph) means such amount of the outstanding voting securities of such person as entitles
the holder or holders thereof to cast such specified percentage of the aggregate votes which
the holders of all the outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.




     (2) A specified percentage of a class of securities of a person means such percentage
of the aggregate amount of securities of the class outstanding.




     (3) The term “amount”, when used with regard to securities means the principal amount
if relating to evidences of indebtedness, the number of shares if
relating to capital shares, and the number of units if relating to any other kind of security.




     (4) The term “outstanding” means issued and not held by or for the account of the
issuer. The following securities shall not be deemed outstanding within the meaning of this
definition:




     (i) securities of an issuer held in a sinking fund relating to securities of
the issuer of the same class;




     (ii) securities of an issuer held in a sinking fund relating to another class
of securities of the issuer, if the obligation evidenced by such other class of
securities is not in default as to principal or interest or otherwise;




     (iii) securities pledged by the issuer thereof as security for an obligation of
the issuer not in default as to principal or interest or otherwise; and




     (iv) securities held in escrow if placed in escrow by the issuer thereof;




provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.




     (5) A security shall be deemed to be of the same class as another security if both
securities confer upon the holder or holders thereof substantially the same rights and
privileges; provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.



          (f) Except in the case of a default in the payment of the principal of or interest on any Debt
Security of any series, or in the payment of any sinking or purchase fund installment, the Trustee
shall not be required to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for hearing thereon,
that:



43









 






     (1) the Event of Default may be cured or waived during a reasonable period and under
the procedures described in such application; and




     (2) a stay of the Trustee’s duty to resign will not be inconsistent with the interests
of Holders of the Debt Securities.


The filing of such an application shall automatically stay the performance of the duty to resign
until the Commission orders otherwise.




          Section 6.09. Corporate Trustee Required; Eligibility.



          There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $100,000,000, subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such
corporation 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 upon
any Debt Securities.



          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 under Section 6.11.



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



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



          (d) If at any time:




     (1) the Trustee shall fail to comply with Section 6.08(a) with respect to the Debt
Securities of any series after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Debt Security of such series for at least six months, or




     (2) the Trustee shall cease to be eligible under Section 6.09 with respect to the Debt
Securities of any series and shall fail to resign after written request therefor by the
Company or by any such Holder, or




     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer



44









 






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 Debt Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder
of a Debt Security of any series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.




          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Debt Securities of one or
more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of one or more or all
of such series and that at any time there shall be only one Trustee with respect to the Debt
Securities of any particular series) and 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 Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the Debt Securities of
any series shall have been so appointed by the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a
Debt Security of such series for at least six months may, subject to Section 5.14, 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 Debt Securities of such series.



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



          Section 6.11. Acceptance of Appointment by Successor.



          (a) In the case of an appointment hereunder of a successor Trustee with respect to all Debt
Securities, each 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 request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 6.07.



          (b) In case of the appointment hereunder of a successor Trustee with respect to the Debt
Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Debt Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall



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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 Debt 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 Debt
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 Debt
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 any 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 other
trust or trusts hereunder administered by any other such Trustee; and upon the execution and
delivery of any 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 Debt 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 Debt 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 Debt 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 Debt Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such Debt Securities. In case any Debt
Securities shall not have been authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in either its own name or that of its
predecessor Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.



          Section 6.13. Preferential Collection of Claims Against Company.



          (a) Subject to subsection (b) of this Section, if the Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to
a default, as defined in subsection (c) of this Section, or subsequent to such default, then,
unless and until such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the



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Trustee individually, the Holders of the Debt Securities and the holders of other indenture
securities (as defined in subsection (c) of this Section):





     (1) an amount equal to any and all reductions in the amount due and owing upon any
claim as such creditor in respect of principal or interest, effected after the beginning of
such three-month period and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a voluntary or involuntary case had been commenced in
respect of the Company under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other similar law upon
the date of such default; and




     (2) all property received by the Trustee in respect of any claim as such creditor,
either as security therefor, or in satisfaction or composition thereof, or otherwise, after
the beginning of such three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such proceeds. Nothing herein contained,
however, shall affect the right of the Trustee:




     (A) to retain for its own account (i) payments made on account of any such claim by any
Person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third Person, and (iii) distributions made
in cash, securities or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings or reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;




     (B) to realize, for its own account, upon any property held by it as security for any
such claim, if such property was so held prior to the beginning of such three-month period;




     (C) to realize, for its own account, but only to the extent of the claim hereinafter
mentioned, upon any property held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in subsection (c) of this Section,
would occur within three months, or




     (D) to receive payment on any claim referred to in paragraph (B) or (C) against the
release of any property held as security for such claim as provided in paragraph (B) or (C),
as the case may be, to the extent of the fair value of such property.



          For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of
such three-month period for property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing
claim.



          If the Trustee shall be required to account, the funds and property held in such special
account and the proceeds thereof shall be apportioned among the Trustee, the Holders and the
holders of



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other indenture securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such special account and payments
of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted or any
other applicable Federal or State bankruptcy, insolvency or other similar law, the same percentage
of their respective claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or other similar law,
but after crediting thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and property so held in
such special account. As used in this paragraph, with respect to any claim, the term “dividends”
shall include any distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or other similar law,
whether such distribution is made in cash, securities, or other property, but shall not include any
such distribution with respect to the secured portion, if any, of such claim. The court in which
such bankruptcy, receivership or proceedings for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee and the Holders and the holders of other indenture securities,
in accordance with the provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give
to the provisions of this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in such special account
or as security for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claim, or otherwise to apply the provisions of
this paragraph as a mathematical formula.




          Any Trustee which has resigned or been removed after the beginning of such three-month period
shall be subject to the provisions of this subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if the following
conditions exist:




     (i) the receipt of property or reduction of claim, which would have given rise
to the obligation to account, if such Trustee had continued as Trustee, occurred
after the beginning of such three-month period; and




     (ii) such receipt of property or reduction of claim occurred within three
months after such resignation or removal.



          (b) There shall be excluded from the operation of subsection (a) of this Section a creditor
relationship arising from:




     (1) the ownership or acquisition of securities issued under any indenture, or any
security or securities having a maturity of one year or more at the time of acquisition by
the Trustee;




     (2) advances authorized by a receivership or bankruptcy court of competent jurisdiction
or by this Indenture, for the purpose of preserving any property which shall at any time be
subject to the Lien of this Indenture or of discharging tax liens or other prior liens or



48









 






encumbrances thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner provided in this
Indenture;




     (3) disbursements made in the ordinary course of business in the capacity of trustee
under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;




     (4) an indebtedness created as a result of services rendered or premises rented, or an
indebtedness created as a result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section;




     (5) the ownership of stock or of other securities of a corporation organized under the
provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and




     (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of
exchange, acceptances or obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this Section.



          (c) for the purposes of this Section only:




     (1) The term “default” means any failure to make payment in full of the principal of or
interest on any of the Debt Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable.




     (2) The term “other indenture securities” means securities upon which the Company is an
obligor outstanding under any other indenture (i) under which the Trustee is also trustee,
(ii) which contains provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of the funds and
property held in such special account.




     (3) The term “cash transaction” means any transaction in which full payment for goods
or securities sold is made within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks and payable upon demand.




     (4) The term “self-liquidating paper” means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation.




     (5) The term “Company” means any obligor upon the Debt Securities.



          Section 6.14. Appointment of Authenticating Agent.



          As long as any Debt Securities of a series remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the “Authenticating Agent”) appointed, for such period as the



49









 




Company shall elect, by the Trustee for such series of Debt Securities to act as its agent on
its behalf and subject to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee’s Certificate of Authentication, such
reference shall be deemed to include authentication and delivery on behalf of the Trustee for such
series by an Authenticating Agent for such series and a Certificate of Authentication executed on
behalf of such Trustee by such Authenticating Agent, except that only the Trustee may authenticate
Debt Securities upon original issuance and pursuant to Section 3.06 hereof. Such Authenticating
Agent shall at all times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $10,000,000 and subject to supervision or
examination by Federal or State authority. 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 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.




          Any corporation into which any 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 any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee for such series or
such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the applicable Trustee and to the
Company.



          Upon receiving such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14 with respect to one or more or all series of Debt Securities, the Trustee for such
series shall upon a Company Request appoint a successor Authenticating Agent, and the Company shall
provide notice of such appointment to all Holders of Debt Securities of such series in the manner
and to the extent provided in Section 1.05. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers, duties and responsibilities
of its predecessor hereunder, with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Debt Securities of such series agrees to pay to the Authenticating
Agent for such series from time to time reasonable compensation for its services, and the Trustee
shall be entitled to be reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee for such series.



          If an appointment with respect to one or more series is made pursuant to this Section, the
Debt 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:



50









 





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



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	As Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	As Authenticating Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Signatory	 	 






ARTICLE SEVEN




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 with respect to Registered
Securities of each series for which it acts as Trustee:



          (a) semi-annually on a date not more than 15 days after each Regular Record Date with respect
to an Interest Payment Date, if any, for the Registered Securities of such series (or on
semi-annual dates in each year to be determined pursuant to Section 3.01 if the Registered
Securities of such series do not bear interest), a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Registered Holders as of the date 15 days next preceding
each such Regular Record Date (or such semi-annual dates, 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 as of a date not
more than 15 days prior to the time such list is furnished; provided, however, that
if and so long as the Trustee shall be the Security Registrar for such series, no such list need be
furnished.



          Section 7.02. Preservation of Information; Communication to Holders.



          (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.01 received by it in the capacity of Paying Agent (if so
acting) hereunder.



          The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished, destroy any information received by it as Paying Agent (if so acting)
hereunder upon delivering to itself as Trustee, not earlier than 45 days after an Interest Payment
Date, a list containing the names and addresses of the Holders obtained from such information since
the delivery of the next previous list, if any, and destroy any list delivered to itself as Trustee
which was compiled from



51









 




information received by it as Paying Agent (if so acting) hereunder upon the receipt of a new
list so delivered.




          (b) If three or more Holders (hereinafter referred to as “applicants”) apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Debt
Security for a period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders of Debt Securities
of a particular series (in which case the applicants must hold Debt Securities of such series) or
with all Holders of Debt Securities with respect to their rights under this Indenture or under the
Debt Securities and is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either




     (i) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 7.02(a), or




     (ii) inform such applicants as to the approximate number of Holders of Debt
Securities of such series or of all Debt Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, specified in such application.



          If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon written request of such applicants, mail to the Holders of Debt Securities of
such series or all Holders, as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall
mail to such applicants and file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Debt Securities of such series or all Holders,
as the case may be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order refusing to sustain
any of such objections or if after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.



          (c) Every Holder of Debt Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses of the Holders in
accordance with Section 7.02(b), regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing of any material pursuant to
a request made under Section 7.02(b).



52









 





          Section 7.03. Reports by Trustee.



          (a) Within
60 days after ______ of each year, commencing ______ ___, 20 ___, the Trustee
shall, to the extent required by the Trust Indenture Act, transmit to all Holders of Debt
Securities of any series with respect to which it acts as Trustee, in the manner hereinafter
provided in this Section 7.03, a brief report dated such date with respect to any of the following
events which may have occurred within the previous 12 months (but if no such event has occurred
within such period no report need be transmitted):




     (1) any change to its eligibility under Section 6.09 and its qualifications under
Section 6.08;




     (2) the creation of or any material change to a relationship specified in paragraph (1)
through (10) of Section 6.08(c) of this Indenture;




     (3) the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of which it claims or may claim
a lien or charge, prior to that of the Debt Securities of such series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Outstanding Debt Securities of such series on
the date of such report;




     (4) any change to the amount, interest rate and maturity date of all other indebtedness
owing by the Company (or any other obligor on the Debt Securities of such series) to the
Trustee in its individual capacity, on the date of such report, with a brief description of
any property held as collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section 6.13(b)(2), (3), (4) or
(6);




     (5) any change to the property and funds, if any, physically in the possession of the
Trustee as such on the date of such report;




     (6) any additional issue of Debt Securities which the Trustee has not previously
reported; and




     (7) any action taken by the Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the Debt Securities
of such series, except action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.02.



          (b) The Trustee shall transmit by mail to all Holders of Debt Securities of any series (whose
names and addresses appear in the information preserved at the time by the Trustee in accordance
with Section 7.02 (a)) for which it acts as the Trustee, as hereinafter provided, a brief report
with respect to the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no such report has
yet been so transmitted, since the date of execution of this instrument) for the reimbursement of
which it claims or may claim a lien or charge, prior to that of the Debt Securities of such series,
on property or funds held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection, except that the Trustee for each series shall not be required (but may
elect) to report such advances if such advances remaining unpaid at



53









 




any time aggregate 10% or less of the principal amount of the Debt Securities of such series
Outstanding at such time, such report to be transmitted within 90 days after such time.




          (c) Reports pursuant to this Section 7.03 shall be transmitted by mail:




     (1) to all Holders of Registered Securities, as the names and addresses of such Holders
of Registered Securities appear in the Security Register; and




     (2) except in the cases of reports pursuant to subsection (b) of this Section 7.03, to
each Holder of a Debt Security of any series whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(a).



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



          Section 7.04. Reports by Company.



          Unless otherwise specified with respect to a particular series of Debt Securities pursuant to
Section 3.01, the Company will:




     (1) file with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended. Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, or otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall continue to file with the Commission and provide the Trustee
and the Holders of each series of Debt Securities with, without cost to each Holder, (a)
within 90 days after the end of each fiscal year, annual reports on Form 10-K (or any
successor or comparable form) containing the information required to be contained therein
(or required in such successor or comparable form); (b) within 45 days after the end of each
of the first three fiscal quarters of each fiscal year, reports on Form 10-Q (or any
successor or comparable form); and (c) promptly from time to time after the occurrence of an
event required to be therein reported, such other reports on Form 8-K (or any successor or
comparable form) containing the information required (other than pursuant to Item 9 of such
report) to be contained therein (or required in any successor or comparable form);
provided, however, that the Company shall not be obligated to file such
reports with the Commission if the Commission does not permit such filings. The Company will
in all cases, without cost to each recipient, provide copies of such information to the
Holders of the Debt Securities of each series and, if they are not permitted to file such
reports with the Commission, shall make available information to prospective purchasers and
to securities analysts and broker-dealers upon their request;




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



54









 






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




     (3) transmit to all Holders of Debt Securities, in the manner and to the extent
provided in Section 7.03, 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 paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.



ARTICLE EIGHT




CONCERNING THE HOLDERS




          Section 8.01. Acts of Holders.



          Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee, and, where
it is hereby expressly required, to the Company. Such 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. Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the Outstanding Debt Securities
of any series may take any Act, the fact that the Holders of such specified percentage have joined
therein may be evidenced (a) by the instrument or instruments executed by Holders in person or by
agent or proxy appointed in writing, or (b) by the record of Holders voting in favor thereof at any
meeting of such Holders duly called and held in accordance with the provisions of Article Nine, or
(c) by a combination of such instrument or instruments and any such record of such a meeting of
Holders.



          Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holder.



          The ownership of Registered Securities of any series shall be proved by the Security Register
for such series or by a certificate of the Security Registrar for such series.



          Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of the execution of any
instrument by a Holder or such Holder’s agent shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.



          The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.



          The Trustee may in any instance require further proof with respect to any of the matters
referred to in this Section so long as the request is a reasonable one.



          Section 8.03. Persons Deemed Owners.



          The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Registered Security is registered as the owner of such Registered Security for the
purpose of receiving payment of the principal of (and premium, if any) and (subject to Section
3.07)



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interest, if any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary. All payments made to any
Holder, or upon his order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Debt Security.




          Section 8.04. Revocation of Consents; Future Holders Bound.



          At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any Act by the Holders of the percentage in aggregate principal amount of
the Outstanding Debt Securities specified in this Indenture in connection with such Act, any Holder
of a Debt Security the number, letter or other distinguishing symbol of which is shown by the
evidence to be included in the Debt Securities the Holders of which have consented to such Act may,
by filing written notice with the Trustee at the Corporate Trust Office and upon proof of ownership
as provided in Section 8.02, revoke such Act so far as it concerns such Debt Security. Except as
aforesaid, any such Act taken by the Holder of any Debt Security shall be conclusive and binding
upon such Holder and, subject to the provisions of Section 5.08, upon all future Holders of such
Debt Security and of any Debt Securities issued on transfer or in lieu thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard thereto is made upon
such Debt Security or such other Debt Securities.



ARTICLE NINE




HOLDERS’ MEETINGS




          Section 9.01. Purposes of Meetings.



          A meeting of Holders of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article Nine for any of the following purposes:




     (1) to give any notice to the Company or to the Trustee for such series, or to give any
directions to the Trustee for such series, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Five;




     (2) to remove the Trustee for such series and appoint a successor Trustee pursuant to
the provisions of Article Six;




     (3) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 11.02; or




     (4) to take any other action authorized to be taken by or on behalf of the Holders of
any specified aggregate principal amount of the Outstanding Debt Securities of any one or
more or all series, as the case may be, under any other provision of this Indenture or under
applicable law.



          Section 9.02. Call of Meetings by Trustee.



          The Trustee for any series may at any time call a meeting of Holders of such series to take
any action specified in Section 9.01, to be held at such time or times and at such place or places
as the Trustee for such series shall determine. Notice of every meeting of the Holders of any
series, setting forth the time and the place of such meeting and in general terms the action
proposed to be taken at such



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meeting, shall be given to Holders of such series in the manner and to the extent provided in
Section 1.05. Such notice shall be given not less than 10 days nor more than 90 days prior to the
date fixed for the meeting.




          Section 9.03. Call of Meetings by Company or Holders.



          In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least
10% in aggregate principal amount of the Outstanding Debt Securities of a series or of all series,
as the case may be, shall have requested the Trustee for such series to call a meeting of Holders
of any or all such series by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within
10 days after the receipt of such request, then the Company or such Holders may determine the time
or times and the place or places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section 9.02.



          Section 9.04. Qualifications for Voting.



          To be entitled to vote at any meeting of Holders a Person shall be (a) a Holder of a Debt
Security of the series with respect to which such meeting is being held or (b) a Person appointed
by an instrument in writing as agent or proxy by such Holder. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee for the series with
respect to which such meeting is being held and its counsel and any representatives of the Company
and its counsel.



          Section 9.05. Regulations.



          Notwithstanding any other provisions of this Indenture, the Trustee for any series may make
such reasonable regulations as it may deem advisable for any meeting of Holders of such series, in
regard to proof of the holding of Debt Securities of such series and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate.



          The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Holders of such series as provided
in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by a majority vote of the meeting.



          Subject to the provisos in the definition of “Outstanding,” at any meeting each Holder of a
Debt Security of the series with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000 principal amount (or such other amount as shall be
specified as contemplated by Section 3.01) of Debt Securities of such series held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue
of Outstanding Debt Securities of such series held by him or instruments in writing duly
designating him as the person to vote on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly called pursuant to the provisions of
Section 9.02 or 9.03 may be adjourned from time to time by a majority of such Holders present and
the meeting may be held as so adjourned without further notice.



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          Section 9.06. Voting.



          The vote upon any resolution submitted to any meeting of Holders with respect to which such
meeting is being held shall be by written ballots on which shall be subscribed the signatures of
such Holders or of their representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be taken and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing
that said notice was transmitted as provided in Section 9.02. The record shall show the serial
numbers of the Debt Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.



          Any record so signed and verified shall be conclusive evidence of the matters therein stated.



          Section 9.07. No Delay of Rights by Meeting.



          Nothing contained in this Article Nine shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder
to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.



ARTICLE TEN




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




          Section 10.01. Company May Consolidate, etc., Only on Certain Terms.



          The Company shall not consolidate with or merge with or into or wind up into (whether or not
the Company is the surviving corporation) or sell, assign, convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless:




     (1) the corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety (the “successor corporation”) shall be a
corporation organized and existing under the laws of the United States or any State or
territory thereof or the District of Columbia 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
on all the Debt Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;




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



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     (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with; and




     (4) such other conditions as may be specified under Section 3.01 with respect to any
series of Debt Securities.



          Section 10.02. Successor Corporation Substituted.



          Upon any consolidation with or merger into any other corporation, or any conveyance, transfer
or lease of the properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease 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 corporation had been named as the Company herein.



ARTICLE ELEVEN




SUPPLEMENTAL INDENTURES




          Section 11.01. Supplemental Indentures Without Consent of Holders.



          Without the consent of any Holders, the Company, when authorized by 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:




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




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




     (3) to add any additional Events of Default (and if such Events of Default are to be
applicable to less than all series, stating that such Events of Default are expressly being
included solely to be applicable to such series); or




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




     (5) to secure the Debt Securities or to provide that any of the Company’s obligations
under any series of the Debt Securities shall be guaranteed and the terms and conditions for
the release or substitution of such security or guarantee; or



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     (6) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Debt
Securities pursuant to Article Four or Fifteen, provided that any such action shall
not adversely affect the interests of the Holders of Debt Securities of such series or any
other series of Debt Securities in any material respect; or




     (7) to establish the form or terms of Debt Securities of any series as permitted by
Sections 2.01 and 3.01; or




     (8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to one or more series of Debt Securities 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; or




     (9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, to eliminate any conflict between
the terms hereof and the Trust Indenture Act or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be inconsistent with any
provision of this Indenture; provided such other provisions shall not adversely
affect the interests of the Holders of Outstanding Debt Securities of any series created
prior to the execution of such supplemental indenture in any material respect.



          Section 11.02. Supplemental Indentures With Consent of Holders.



          With the written consent of the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of each series affected by such supplemental indenture voting
separately, by Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by 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 under this Indenture of such Debt Securities; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each Outstanding Debt
Security of each such series affected thereby,




     (1) conflict with the required provisions of the Trust Indenture Act;




     (2) except as specifically provided with respect to any series of Debt Securities
pursuant to Section 3.01, (a) change the Stated Maturity of the principal of, or installment
of interest, if any, on, any Debt Security, or reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof (provided that a requirement
to offer to repurchase Debt Securities shall not be deemed a redemption for this purpose),
or change the Stated Maturity of, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is denominated or
payable, or reduce the amount of the principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02,
or reduce the amount of, or postpone the date fixed for, any payment under any sinking fund
or analogous provisions for any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or adversely affect the right to convert any
Debt Security into shares of Common Shares of the Company as may be provided pursuant to
Section 3.01; or




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     (3) reduce the percentage in principal amount of the Outstanding Debt Securities of any
series, the consent of whose Holders is required for any 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; or




     (4) modify any of the provisions of this Section, Section 5.13 or Section 12.06, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Debt Security of each series affected thereby; 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 and Section 12.06,
or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and
11.01(6); or




     (5) modify any of the provisions of this Indenture relating to the subordination of the
Debt Securities in a manner adverse to the Holders.



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




          A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture with respect to one or more particular series of Debt Securities or which modifies the
rights of the Holders of Debt 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 Debt
securities of any other series.




          Section 11.03. 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 entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise in a material way.




          Section 11.04. Effect of Supplemental Indentures.




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




          Section 11.05. 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 11.06. Reference in Debt Securities to Supplemental Indentures.




          Debt 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




61









 







in form approved by the Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Debt Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series.




          Section 11.07. Notice of Supplemental Indenture.




          Promptly after the execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 11.02, the Company shall transmit, in the manner and to the extent
provided in Section 1.05, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental indenture.




ARTICLE TWELVE




COVENANTS




          Section 12.01. Payment of Principal, Premium and Interest.




          The Company, for the benefit of each series of Debt Securities, will duly and punctually pay
or cause to be paid the principal of, and premium, if any, and interest on, each of the Debt
Securities at the place, at the respective times and in the manner provided herein. Each
installment of interest on the Debt Securities may at the Company’s option be paid by mailing
checks for such interest payable to the Person entitled thereto to the address of such Person as it
appears on the Security Register.




          Section 12.02. Officer’s Certificate as to Default.




          Unless otherwise specifically provided for with respect to any series of Debt Securities under
Section 3.01, the Company will deliver to the Trustee, on or before a date not more than four
months after the end of each fiscal year of the Company (which on the date hereof is the calendar
year) ending after the date hereof, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether or not to the best
knowledge of the signer thereof the Company is in compliance with all covenants and conditions
under this Indenture, and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or requirement of notice
provided under this Indenture.




          Section 12.03. Maintenance of Office or Agency.




          If Debt Securities of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for such series an office or agency where Debt Securities of that
series may be presented or surrendered for payment, where Debt Securities of that series may be
surrendered for registration of transfer or exchange, where Debt Securities of that series that are
convertible may be surrendered for conversion, if applicable, and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.




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          The Company may also from time to time designate different or additional offices or agencies
to be maintained for such purposes (in or outside of such Place of Payment), and may from time to
time rescind any such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any such different or
additional office or agency.




          Section 12.04. Money for Debt Securities; Payments To Be Held in Trust.




          If the Company shall at any time act as its own Paying Agent with respect to any series of
Debt Securities it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Debt Securities of such series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) 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 of its action or failure so to act.




          Whenever the Company shall have one or more Paying Agents with respect to any series of Debt
Securities, it will, by or on each due date of the principal (and premium, if any) or interest on
any Debt Securities of such series, deposit with any such 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 thereto, and (unless any such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.




          The Company will cause each Paying Agent with respect to any series of Debt 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:





     (1) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest on Debt Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;




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




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



          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.




          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Debt 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 upon Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such Debt Security
shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all




63









 







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 of the Company cause to be transmitted in the manner and to the
extent provided by Section 1.05, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such notification, any
unclaimed balance of such money then remaining will be repaid to the Company.




          Section 12.05. Corporate Existence.




          Subject to Article Ten, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.




          Section 12.06. Waiver of Certain Covenants.




          The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Section 12.05 (and, if so specified pursuant to Section 3.01, any other
covenant not set forth herein and specified pursuant to Section 3.01 to be applicable to the
Securities of any series, except as otherwise provided pursuant to Section 3.01) with respect to
the Debt Securities of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Debt Securities of such series shall, by Act of
such Holders, 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 expressly so 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.




ARTICLE THIRTEEN




REDEMPTION OF DEBT SECURITIES




          Section 13.01. Applicability of Article.



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




          Section 13.02. Election to Redeem; Notice to Trustee.




          The election of the Company to redeem (or, in the case of Discount Securities, to permit the
Holders to elect to surrender for redemption) any Debt Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less than all of the Debt
Securities of any series pursuant to Section 13.03, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount of Debt Securities
of such series to be redeemed. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restrictions.




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          Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed.




          Except in the case of a redemption in whole of Registered Securities of such series, if less
than all the Debt Securities of any series are to be redeemed at the election of the Company, the
particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Debt Securities of such series or any integral multiple thereof) of the principal amount of
Debt Securities of such series in a denomination larger than the minimum authorized denomination
for Debt Securities of such series pursuant to Section 3.02 in the Currency in which the Debt
Securities of such series are denominated. The portions of the principal amount of Debt Securities
so selected for partial redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.02 in the Currency in which the Debt Securities of
such series are denominated or any integral multiple thereof, except as otherwise set forth in the
applicable form of Debt Securities. In any case when more than one Registered Security of such
series is registered in the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Registered Security of such series.




          The Trustee shall promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed.




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




          Section 13.04. Notice of Redemption.




          Notice of redemption shall be given by the Company, or at the Company’s request, by the
Trustee in the name and at the expense of the Company, not less than 30 days and not more than 60
days prior to the Redemption Date to the Holders of Debt Securities of any series to be redeemed in
whole or in part pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether or not the Holder
receives such notice. Failure to give such notice, or any defect in such notice to the Holder of
any Debt Security of a series designated for redemption, in whole or in part, shall not affect the
sufficiency of any notice of redemption with respect to the Holder of any other Debt Security of
such series.




          All notices of redemption shall state:





     (1) the Redemption Date,




     (2) the Redemption Price,




     (3) that Debt Securities of such series are being redeemed by the Company pursuant to
provisions contained in this Indenture or the terms of the Debt Securities of such series or
a supplemental indenture establishing such series, if such be the case, together with a
brief statement of the facts permitting such redemption,



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     (4) if less than all Outstanding Debt Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Debt Securities to be redeemed,




     (5) that on the Redemption Date the Redemption Price will become due and payable upon
each such Debt Security to be redeemed, and that interest thereon, if any, shall cease to
accrue on and after said date,




     (6) the Place or Places of Payment where such Debt Securities are to be surrendered for
payment of the Redemption Price, and




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



          Section 13.05. Deposit of Redemption Price.




          On or prior to the Redemption Date for any Debt Securities, 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 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to Section 3.01) sufficient
to pay the Redemption Price of such Debt Securities or any portions thereof which are to be
redeemed on that date.




          Section 13.06. Debt Securities Payable on Redemption Date.




          Notice of redemption having been given as aforesaid, any Debt Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price in the Currency in
which the Debt Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear interest. Upon surrender
of any such Debt Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price; provided, however, that, unless
otherwise specified as contemplated by Section 3.01, installments of interest on Registered
Securities which have a Stated Maturity on or prior to the Redemption Date for such Debt Securities
shall be payable according to the terms of such Debt Securities and the provisions of Section 3.07.




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




          Section 13.07. Debt Securities Redeemed in Part.




          Any Debt Security which is to be redeemed only in part shall be surrendered at the Corporate
Trust Office or such other office or agency of the Company as is specified pursuant to Section 3.01
with, if the Company, the Security Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the Security Registrar 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 Debt
Security without service charge, a new Debt Security or Debt Securities of the same series, of like
tenor and form, 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 Debt Security so
surrendered. In the case of a Debt Security providing appropriate space for such notation, at the
option of the Holder thereof, the




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Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.




ARTICLE FOURTEEN




SINKING FUNDS




          Section 14.01. Applicability of Article.




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




          The minimum amount of any sinking fund payment provided for by the terms of Debt 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 Debt Securities of any series is herein
referred to as an “optional sinking fund payment.” If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to reduction as provided
in Section 14.02. Each sinking fund payment shall be applied to the redemption of Debt Securities
of any series as provided for by the terms of Debt Securities of such series.




          Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities.




          In lieu of making all or any part of a mandatory sinking fund payment with respect to any Debt
Securities of a series in cash, the Company may at its option, at any time no more than sixteen
months and no less than 45 days prior to the date on which such sinking fund payment is due,
deliver to the Trustee Debt Securities of such series theretofore purchased or otherwise acquired
by the Company, except Debt Securities of such series which have been redeemed through the
application of mandatory sinking fund payments pursuant to the terms of the Debt Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such obligations and
stating that the Debt Securities of such series were originally issued by the Company by way of
bona fide sale or other negotiation for value, provided that such Debt Securities shall not
have been previously so credited. Such Debt Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Debt Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.




          Section 14.03. Redemption of Debt Securities for Sinking Fund.




          Not less than 60 days prior to each sinking fund payment date for any series of Debt
Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver
to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion thereof, if any, which is
to be satisfied by payment of cash in the Currency or Currencies in which the Debt Securities of
such series are denominated (except as provided pursuant to Section 3.01) and the portion thereof,
if any, which is to be satisfied by delivering and crediting Debt Securities of such series
pursuant to Section 14.02 and whether the Company intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking fund payment date.
In the case of the failure of the Company to deliver such certificate, the sinking fund payment due
on the next succeeding sinking fund payment date for such series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of the Debt Securities of such series subject to
a mandatory




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sinking fund payment without the right to deliver or credit Debt Securities as provided in
Section 14.02 and without the right to make any optional sinking fund payment with respect to such
series at such time.




          Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made with respect to the Debt Securities of any
particular series shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Debt Securities of such series at the
Redemption Price specified in such Debt Securities with respect to the sinking fund. Any sinking
fund moneys not so applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to the next sinking
fund payment received by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.04) for such series and, together with such
payment (or such amount so segregated) shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys with respect to the Debt Securities of any particular
series held by the Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.04) on the last sinking fund payment date with respect to
Debt Securities of such series and not held for the payment or redemption of particular Debt
Securities of such series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the Debt Securities of
such series at Maturity.




          The Trustee shall select or cause to be selected the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 13.03 and the Company shall cause
notice of the redemption thereof to be given in the manner provided in Section 13.04. Such notice
having been duly given, the redemption of such Debt Securities shall be made upon the terms and in
the manner stated in Section 13.06.




          On or before each sinking fund payment date, the Company shall pay to the Trustee (or, if the
Company is acting as its own Paying Agent, the Company shall segregate and hold in trust as
provided in Section 12.04) in cash a sum, in the Currency or Currencies in which Debt Securities of
such series are denominated (except as provided pursuant to Sections 3.01 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section.




          Neither the Trustee nor the Company shall redeem any Debt Securities of a series with sinking
fund moneys or mail any notice of redemption of Debt Securities of such series by operation of the
sinking fund for such series during the continuance of a default in payment of interest, if any, on
any Debt Securities of such series or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph) with respect to the Debt Securities of such series,
except that if the notice of redemption shall have been provided in accordance with the provisions
hereof, the Trustee (or the Company, if the Company is then acting as its own Paying Agent) shall
redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee
(or segregated by the Company) for that purpose in accordance with the terms of this Article.
Except as aforesaid, any moneys in the sinking fund for such series at the time when any such
default or Event of Default shall occur and any moneys thereafter paid into such sinking fund
shall, during the continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities of such series; provided, however, that in case such
default or Event of Default shall have been cured or waived as provided herein, such moneys shall
thereafter be applied on or prior to the next sinking fund payment date for the Debt Securities of
such series on which such moneys may be applied pursuant to the provisions of this Section.




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ARTICLE FIFTEEN




DEFEASANCE




          Section 15.01. Applicability of Article.




          If, pursuant to Section 3.01, provision is made for the defeasance of Debt Securities of a
series, and if the Debt Securities of such series are Registered Securities and denominated and
payable only in Dollars (except as provided pursuant to Section 3.01) then the provisions of this
Article shall be applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities denominated in a
Foreign Currency or Currencies may be specified pursuant to Section 3.01.




          Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.




          At the Company’s option, either (a) the Company shall be deemed to have been Discharged (as
defined below) from its obligations with respect to Debt Securities of any series (“legal
defeasance option”) or (b) the Company shall cease to be under any obligation to comply with any
term, provision or condition set forth in Section 10.01 with respect to Debt Securities of any
series (and, if so specified pursuant to Section 3.01, any other obligation of the Company or
restrictive covenant added for the benefit of such series pursuant to Section 3.01) (“covenant
defeasance option”) at any time after the applicable conditions set forth below have been
satisfied:





     (1) the Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through the payment of interest
and principal in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (iii) a combination of
(i) and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Debt Securities of such series on the dates such installments of interest or
principal and premium are due;




     (2) such deposit shall not cause the Trustee with respect to the Debt Securities of
that series to have a conflicting interest as defined in Section 6.08 and for purposes of
the Trust Indenture Act with respect to the Debt Securities of any series;




     (3) such deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;




     (4) if the Debt Securities of such series are then listed on any national securities
exchange, the Company shall have delivered to the Trustee an Opinion of Counsel or a letter
or other document from such exchange to the effect that the Company’s exercise of its option
under this Section would not cause such Debt Securities to be delisted;




     (5) no Event of Default or event (including such deposit) which, with notice or lapse
of time or both, would become an Event of Default with respect to the Debt Securities of
such series shall have occurred and be continuing on the date of such deposit and, with
respect to the



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legal defeasance option only, no Event of Default under Section 5.01(7) or Section
5.01(8) or event which with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.01(7) or Section 5.01(8) shall have occurred and be
continuing on the 91st day after such date; and




     (6) the Company shall have delivered to the Trustee an Opinion of Counsel or a ruling
from the Internal Revenue Service to the effect that the Holders of the Debt Securities of
such series will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge.


Notwithstanding the foregoing, if the Company exercises its covenant defeasance option and an Event
of Default under Section 5.01(7) or Section 5.01(8) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under Section 5.01(7) or Section 5.01(8)
shall have occurred and be continuing on the 91st day after the date of such deposit, the
obligations of the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated. Money and securities held in trust pursuant to
a legal defeasance shall not be subject to Article Sixteen.




          “Discharged” means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by, and obligations under, the Debt Securities of such series and to have
satisfied all the obligations under this Indenture relating to the Debt Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Debt Securities of such series to receive, from the
trust fund described in clause (1) above, payment of the principal of (and premium, if any) and
interest on such Debt Securities when such payments are due, (B) the Company’s obligations with
respect to the Debt Securities of such series under Sections 3.04, 3.05, 3.06, 12.03 and 15.03 and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.




          “U.S. Government Obligations” means securities that are (i) direct obligations of the United
States for the payment of which its full faith and credit is pledged, or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable or redeemable at
the option of the issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt.




          Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust.




          All moneys and U.S. Government Obligations deposited with the Trustee pursuant to Section
15.02 in respect of Debt Securities of a series shall be held in trust and applied by it, in
accordance with the provisions of such Debt Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due and to become due
thereon for principal (and premium, if any) and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.




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          Section 15.04. Repayment to Company.




          The Trustee and any Paying Agent shall promptly pay or return to the Company upon Company
Request any moneys or U.S. Government Obligations held by them at any time that are not required
for the payment of the principal of (and premium, if any) and interest on the Debt Securities of
any series for which money or U.S. Government Obligations have been deposited pursuant to Section
15.02.




          The provisions of the last paragraph of Section 12.04 shall apply to any money held by the
Trustee or any Paying Agent under this Article that remains unclaimed for two years after the
Maturity of any series of Debt Securities for which money or U.S. Government Obligations have been
deposited pursuant to Section 15.02.




ARTICLE SIXTEEN




SUBORDINATION




          Section 16.01. Agreement to Subordinate.




          The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of
Debt Securities by his acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any) and interest on each and all of the Debt Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment
to the prior payment in full of all Senior Indebtedness.




          Section 16.02. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Debt Securities.




          Upon any distribution of assets of the Company upon any dissolution, winding up, liquidation
or reorganization of the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture
upon the Senior Indebtedness and the holders thereof with respect to the Debt Securities and the
Holders thereof by a plan of reorganization under applicable bankruptcy law):




          (a) the holders of all Senior Indebtedness shall be entitled to receive payment in full of the
principal thereof (and premium, if any) and interest due thereon before the Holders of the Debt
Securities are entitled to receive any payment upon the principal (and premium, if any) or interest
on indebtedness evidenced by the Debt Securities; and




          (b) any payment or distribution of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Debt Securities or the Trustee would be
entitled except for the provisions of this Article Sixteen shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if
any) and interest on the Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior




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Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and




          (c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities, shall be received by
the Trustee or the Holders of the Debt Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid over, upon written notice to the Trustee, to the holder
of such Senior Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which instrument evidencing any of such Senior Indebtedness may
have been issued, ratably as aforesaid, for application to payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.




          Subject to the payment in full of all Senior Indebtedness, the Holders of the Debt Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to Senior Indebtedness
until the principal of (and premium, if any) and interest on the Debt Securities shall be paid in
full and no such payments or distributions to the Holders of the Debt Securities of cash, property,
or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Debt
Securities be deemed to be a payment by the Company to or on account of the Debt Securities. It is
understood that the provisions of this Article Sixteen are and are intended solely for the purpose
of defining the relative rights of the Holders of the Debt Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand. Nothing contained in this Article Sixteen or
elsewhere in this Indenture or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the
Debt Securities, the obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the Debt Securities the principal of (and premium, if any) and interest on the Debt
Securities as and when the same shall become due and payable in accordance with their terms, or to
affect the relative rights of the Holders of the Debt Securities and creditors of the Company other
than the holders of Senior Indebtedness, nor shall anything herein or in the Debt Securities
prevent the Trustee or the Holder of any Debt Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article Sixteen of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon any payment or
distribution of assets of the Company referred to in this Article Sixteen, the Trustee, subject to
the provisions of Sections 6.01 and 6.03, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any distribution to the Trustee for the purpose
of ascertaining the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent to this Article
Sixteen.




          The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness. The Trustee shall not be liable to any such holder if it shall pay or distribute to
or on behalf of Holders of Debt Securities or the Company moneys or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article Sixteen.




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




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          Section 16.03. No Payment on Debt Securities in Event of Default on Senior
Indebtedness.




          No payment by the Company on account of principal (or premium, if any), sinking funds or
interest on the Debt Securities shall be made unless full payment of amounts then due for
principal, premium, if any, sinking funds, and interest on Senior Indebtedness has been made or
duly provided for.




          Section 16.04. Payments on Debt Securities Permitted.




          Nothing contained in this Indenture or in any of the Debt Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any time except as
provided in Sections 16.02 and 16.03, payments of principal (and premium, if any) or interest of
the Debt Securities or (b) prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of (and premium, if any) or interest on
the Debt Securities, unless the Trustee shall have received at its Corporate Trust Office written
notice of any event prohibiting the making of such payment more than two Business Days prior to the
date fixed for such payment.




          Section 16.05. Trustee to Effectuate Subordination.




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




          Section 16.06. Notices to Trustee.




          The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Debt
Securities. Failure to give such notice shall not affect the subordination of the Debt Securities
to Senior Indebtedness. Notwithstanding the provisions of this Article or any other provisions of
this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged
with knowledge of the existence of any Senior Indebtedness or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent, unless and until the
Trustee or such Paying Agent shall have received (in the case of the Trustee, at its Corporate
Trust Office) written notice thereof from the Company or from the holder of any Senior Indebtedness
or from the trustee for any such holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee; provided, however, that if at
least two Business Days prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of either the principal (and
premium, if any) or interest on any Debt Security) the Trustee shall not have received with respect
to such moneys the notice provided for in this Section 16.06, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to receive such
moneys and to apply the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it within two Business Days prior to such
date. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder)
to establish that such a notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Sixteen, the Trustee may
request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other




73









 







facts pertinent to the rights of such Person under this Article Sixteen and, if such evidence
is not furnished, the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.




          Section 16.07. Trustee as Holder of Senior Indebtedness.




          The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article Sixteen in respect of any Senior Indebtedness at any time held by it to the same extent as
any other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.




          Nothing in this Article shall apply to claims, of, or payments to, the Trustee under or
pursuant to Section 6.07.




          Section 16.08. Modification of Terms of Senior Indebtedness.




          Any renewal or extension of the time of payment of any Senior Indebtedness or the exercise by
the holders of Senior Indebtedness of any of their rights under any instrument creating or
evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder,
may be made or done all without notice to or assent from the Holders of the Debt Securities or the
Trustee.




          No compromise, alteration, amendment, modification, extension, renewal or other change of, or
waiver, consent or other action in respect of, any liability or obligation under or in respect of,
or of any of the terms, covenants or conditions of any indenture or other instrument under which
any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or not such release
is in accordance with the provisions of any applicable document, shall in any way alter or affect
any of the provisions of this Article Sixteen or of the Debt Securities relating to the
subordination thereof.




          Section 16.09. Reliance on Judicial Order or Certificate of Liquidation Agent.




          Upon any payment or distribution of assets of the Company referred to in this Article Sixteen,
the Trustee and the Holders of the Debt Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which each insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver,
assignee for the benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Debt Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable therein, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article Sixteen.




          The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of
Debt Securities by his acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any) and interest on each and all of the Debt Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment
to the prior payment in full of all Senior Indebtedness.




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ARTICLE SEVENTEEN




CONVERSION




          Section 17.01. Applicability; Conversion Privilege.




          Except as otherwise specified pursuant to Section 3.01 for Debt Securities of any series, the
provisions of this Article Seventeen shall be applicable to any Debt Securities that are
convertible into Common Shares. If so provided pursuant to Section 3.01 with respect to the Debt
Securities of any series, the Holder of a Debt Security of such series shall have the right, at
such Holder’s option, to convert, in accordance with the terms of such series of Debt Securities
and this Article Seventeen, all or any part (in a denomination of, unless otherwise specified
pursuant to Section 3.01 with respect to Debt Securities of such series, (1) $1,000 in principal
amount or any integral multiple thereof or (2) in the case of Debt Securities denominated in a
Foreign Currency, in a denomination equal to $1,000 or an integral multiple thereof based on the
Market Exchange Rate) of such Debt Security into shares of Common Shares or, as to any Debt
Securities called for redemption, at any time prior to the time and date fixed for such redemption
(unless the Company shall default in the payment of the Redemption Price, in which case such right
shall not terminate at such time and date).




          Section 17.02. Conversion Procedure; Conversion Price; Fractional Shares.




          (a) Each Debt Security to which this Article is applicable shall be convertible at the office
of the Conversion Agent, and at such other place or places, if any, specified in pursuant to
Section 3.01 with respect to the Debt Securities of such series, into fully paid and nonassessable
shares (calculated to the nearest 1/100th of a share) of Common Shares. The Debt Securities will be
converted into shares of Common Shares at the Conversion Price therefor. No payment or adjustment
shall be made in respect of dividends on the Common Shares or accrued interest on a converted Debt
Security except as described in Section 17.09. The Company may, but shall not be required, in
connection with any conversion of Debt Securities, to issue a fraction of a share of Common Shares
and, if the Company shall determine not to issue any such fraction, the Company shall, subject to
Section 17.03(4), make a cash payment (calculated to the nearest cent) equal to such fraction
multiplied by the Closing Price of the Common Shares on the last Trading Day prior to the date of
conversion.




          (b) Before any Holder of a Debt Security shall be entitled to convert the same into Common
Shares, such Holder shall surrender such Debt Security duly endorsed to the Company or in blank at
the office of the Conversion Agent or at such other place or places, if any, specified pursuant to
Section 3.01, and shall give written notice to the Company at said office or place that he elects
to convert the same and shall state in writing therein the principal amount of Debt Securities to
be converted and the name or names (with addresses) in which he wishes the certificate or
certificates for Common Shares to be issued; provided, however, that no Debt Security or portion
thereof shall be accepted for conversion unless the principal amount of such Debt Security or such
portion, when added to the principal amount of all other Debt Securities or portions thereof then
being surrendered by the Holder thereof for conversion, exceeds the then effective Conversion Price
with respect thereto. If more than one Debt Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares of Common Shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of the Debt Securities
(or specified portions thereof to the extent permitted thereby) so surrendered. Subject to the next
succeeding sentence, the Company will, as soon as practicable thereafter, issue and deliver at said
office or place to such Holder of a Debt Security, or to his nominee or nominees, certificates for
the number of full shares of Common Shares to which he shall be entitled as aforesaid, together,
subject to the last sentence of paragraph (a) above, with cash in lieu of any fraction of a share
to which he would otherwise be entitled. The Company shall not be required to deliver certificates
for shares




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of Common Shares while the stock transfer books for such stock or the Security Register are
duly closed for any purpose, but certificates for shares of Common Shares shall be issued and
delivered as soon as practicable after the opening of such books or Security Register. A Debt
Security shall be deemed to have been converted as of the close of business on the date of the
surrender of such Debt Security for conversion as provided above, and the Person or Persons
entitled to receive the Common Shares issuable upon such conversion shall be treated for all
purposes as the record Holder or Holders of such Common Shares as of the close of business on such
date. In case any Debt Security shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder
of the Debt Securities so surrendered, without charge to such Holder (subject to the provisions of
Section 17.08), a new Debt Security or Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Debt Security.




          Section 17.03. Adjustment of Conversion Price for Common Shares.




          The Conversion Price with respect to any Debt Security which is convertible into Common Shares
shall be adjusted from time to time as follows:





     (1) In case the Company shall, at any time or from time to time while any of such Debt
Securities are outstanding, (i) pay a dividend in shares of its Common Shares to holders of
Common Shares, (ii) combine its outstanding shares of Common
Shares into a smaller number of shares of Common Shares, (iii) subdivide its outstanding shares of Common Shares into a
greater number of shares of Common Shares or (iv) make a distribution in shares of Common
Shares to holders of Common Shares, then the Conversion Price in effect immediately before
such action shall be adjusted so that the Holders of such Debt Securities, upon conversion
thereof into Common Shares immediately following such event, shall be entitled to receive
the kind and amount of shares of capital stock of the Company which they would have owned or
been entitled to receive upon or by reason of such event if such Debt Securities had been
converted immediately before the record dated (or, if no record date, the effective date)
for such event. An adjustment made pursuant to this Section 17.03(1) shall become effective
retroactively immediately after the record date in the case of a dividend or distribution
and shall become effective retroactively immediately after the effective date in the case of
a subdivision or combination. For the purposes of this Section 17.03(1), each Holder of Debt
Securities shall be deemed to have failed to exercise any right to elect the kind or amount
of securities receivable upon the payment of any such dividend, subdivision, combination or
distribution (provided that if the kind or amount of securities receivable upon such
dividend, subdivision, combination or distribution is not the same for each nonelecting
share, then the kind and amount of securities or other property receivable upon such
dividend, subdivision, combination or distribution for each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares).




     (2) In case the Company shall, at any time or from time to time while any of such Debt
Securities are outstanding, issue rights or warrants to all holders of shares of its Common
Shares entitling them (for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Shares (or securities convertible
into shares of Common Shares) at a price per share less than the Current Market Price of the
Common Shares at such record date (treating the price per share of the securities
convertible into Common Shares as equal to (x) the sum of (i) the price for a unit of the
security convertible into Common Shares and (ii) any additional consideration initially
payable upon the conversion of such security into Common Shares divided by (y) the number of
            shares of Common Shares initially underlying such convertible security), the Conversion
Price with respect to such Debt Securities shall be adjusted so that it shall equal the
price determined by dividing the Conversion Price in effect immediately



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prior to the date of issuance of such rights or warrants by a fraction, the numerator
of which shall be the number of shares of Common Shares outstanding on the date of issuance
of such rights or warrants plus the number of additional shares of Common Shares offered for
subscription or purchase (or into which the convertible securities so offered are initially
convertible), and the denominator of which shall be the number of shares of Common Shares
outstanding on the date of issuance of such rights or warrants plus the number of shares of
additional shares of Common Shares which the aggregate offering price of the total number of
            shares of securities so offered for subscription or purchase (or the aggregate purchase
price of the convertible securities so offered plus the aggregate amount of any additional
consideration initially payable upon conversion of such securities into Common Shares) would
purchase at such Current Market Price of the Common Shares. Such adjustment shall become
effective retroactively immediately after the record date for the determination of
shareholders entitled to receive such rights or warrants.




     (3) In the case the Company shall, at any time or from time to time while any of such
Debt Securities are outstanding, distribute to all holders of shares of its Common Shares
(including any such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and the Common Shares are not changed or
exchanged) cash, evidences of its indebtedness, securities or assets (excluding (i) regular
periodic cash dividends in amounts, if any, determined from time to time by the Board of
Directors, (ii) dividends payable in shares of Common Shares for which adjustment is made
under Section 17.03(1) or (iii) rights or warrants to subscribe for or purchase securities
of the Company (excluding those referred to in Section 17.03(2))), then in each such case
the Conversion Price with respect to such Debt Securities determined by dividing the
Conversion Price in effect immediately prior to the date of such distribution by a fraction,
the numerator of which shall be the Current Market Price of the Common Shares on the record
date referred to below, and the denominator of which shall be such Current Market Price of
the Common Shares less the then fair market value (as determined by the Board of Directors
of the Company, whose determination shall be conclusive) of the portion of the cash or
assets or evidences of indebtedness or securities so distributed or of such subscription
rights or warrants applicable to one share of Common Shares (provided that such denominator
shall never be less than 1.0); provided however, that no adjustment shall be made with
respect to any distribution of rights to purchase securities of the Company if a Holder of
Debt Securities would otherwise be entitled to receive such rights upon conversion at any
time of such Debt Securities into Common Shares unless such rights are subsequently redeemed
by the Company, in which case such redemption shall be treated for purposes of this section
as a dividend on the Common Shares. Such adjustment shall become effective retroactively
immediately after the record date for the determination of shareholders entitled to receive
such distribution; and in the event that such distribution is not so made, the Conversion
Price shall again be adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.




     (4) The Company shall be entitled to make such additional adjustments in the Conversion
Price, in addition to those required by subsections 17.03(1), 17.03(2), and 17.03(3), as
shall be necessary in order that any dividend or distribution of Common Shares, any
subdivision, reclassification or combination of shares of Common Shares or any issuance of
rights or warrants referred to above shall not be taxable to the holders of Common Shares
for United States Federal income tax purposes.




     (5) In any case in which this Section 17.03 shall require that any adjustment be made
effective as of or retroactively immediately following a record date, the Company may elect
to defer (but only for five (5) Trading Days following the filing of the statement referred
to in Section 17.05) issuing to the Holder of any Debt Securities converted after such
record date the



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shares of Common Shares and other capital stock of the Company issuable upon such
conversion over and above the shares of Common Shares and other capital stock of the Company
issuable upon such conversion on the basis of the Conversion Price prior to adjustment;
provided, however, that the Company shall deliver to such Holder a due bill or other
appropriate instrument evidencing such Holder’s right to receive such additional shares upon
the occurrence of the event requiring such adjustment.




     (6) All calculations under this Section 17.03 shall be made to the nearest cent or
one-hundredth of a share of security, with one-half cent and 0.005 of a share, respectively,
being rounded upward. Notwithstanding any other provision of this Section 16.03, the Company
shall not be required to make any adjustment of the Conversion Price unless such adjustment
would require an increase or decrease of at least 1% of such price. Any lesser adjustment
shall be carried forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment or adjustments so carried forward,
shall amount to an increase or decrease of at least 1% in such price. Any adjustments under
this Section 17.03 shall be made successively whenever an event requiring such an adjustment
occurs.




     (7) In the event that at any time, as a result of an adjustment made pursuant to this
Section 17.03, the Holder of any Debt Security thereafter surrendered for conversion shall
become entitled to receive any shares of stock of the Company other than shares of Common
Shares into which the Debt Securities originally were convertible, the Conversion Price of
such other shares so receivable upon conversion of any such Debt Security shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Shares contained in subparagraphs (1) through (6)
of this Section 17.03, and the provisions of Sections 17.01, 17.02 and 17.04 through 17.09
with respect to the Common Shares shall apply on like or similar
terms to any such other shares and the determination of the Board of Directors as to any such adjustment shall be
conclusive.




     (8) No adjustment shall be made pursuant to this Section: (i) if the effect thereof
would be to reduce the Conversion Price below the par value (if any) of the Common Shares or
(ii) subject to 17.03(5) hereof, with respect to any Debt Security that is converted prior
to the time such adjustment otherwise would be made.



          Section 17.04. Consolidation or Merger of the Company.




          In case of either (a) any consolidation or merger to which the Company is a party, other than
a merger or consolidation in which the Company is the surviving or continuing corporation and which
does not result in a reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a subdivision or
combination) in, outstanding shares of Common Shares or (b) any sale or conveyance of all or
substantially all of the property and assets of the Company to another Person, then each Debt
Security then outstanding shall be convertible from and after such merger, consolidation, sale or
conveyance of property and assets into the kind and amount of shares of stock or other securities
and property (including cash) receivable upon such consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Shares into which such Debt Securities would have been
converted immediately prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Seventeen (and assuming such holder of Common Shares failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash or other property
(including cash) receivable upon such consolidation, merger, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance is not the same for each nonelecting share, then the kind
and




78









 







amount of securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting shares or securities)). The
Company shall not enter into any of the transactions referred to in clause (a) or (b) of the
preceding sentence unless effective provision shall be made so as to give effect to the provisions
set forth in this Section 17.04. The provisions of this Section 17.04 shall apply similarly to
successive consolidations, mergers, sales or conveyances.




          Section 17.05. Notice of Adjustment.




          Whenever an adjustment in the Conversion Price with respect to a series of Debt Securities is
required:





     (1) the Company shall forthwith place on file with the Trustee and any Conversion Agent
for such Securities a certificate of the Treasurer of the Company, stating the adjusted
Conversion Price determined as provided herein and setting forth in reasonable detail such
facts as shall be necessary to show the reason for and the manner of computing such
adjustment, such certificate to be conclusive evidence that the adjustment is correct; and




     (2) a notice stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall forthwith be given by the Company, or at the Company’s
request, by the Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.05. Any notice so given shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.



          Section 17.06. Notice in Certain Events.




          In case:





     (1) of a consolidation or merger to which the Company is a party and for which approval
of any shareholders of the Company is required, or of the sale or conveyance to another
Person or entity or group of Persons or entities acting in concert as a partnership, limited
partnership, syndicate or other group (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of all or substantially all of the property and assets of
the Company; or




     (2) of the voluntary or involuntary dissolution, liquidation or winding up of the
Company; or




     (3) of any action triggering an adjustment of the Conversion Price pursuant to this
Article Seventeen; then, in each case, the Company shall cause to be filed with the Trustee
and the Conversion Agent for the applicable Debt Securities, and shall cause to be given, to
the Holders of record of applicable Debt Securities in the manner provided in Section 1.05,
at least fifteen (15) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of any distribution or
grant of rights or warrants triggering an adjustment to the Conversion Price pursuant to
this Article Seventeen, or, if a record is not to be taken, the date as of which the holders
of record or Common Shares entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up triggering an adjustment to the
Conversion Price pursuant to this Article Seventeen is expected to become effective, and the
date as of which it is expected that holders of Common Shares of record shall be entitled to
exchange their Common Shares for securities or other property deliverable upon



79









 






such reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up.



          Failure to give such notice or any defect therein shall not affect the legality or validity of
the proceedings described in clause (1), (2), or (3) of this Section.




          Section 17.07. Company to Reserve Shares; Registration; Listing.




          (a) The Company shall at all times reserve and keep available, free from preemptive rights,
out of its authorized but unissued shares of Common Shares, for the purpose of effecting the
conversion of the Debt Securities, such number of its duly authorized shares of Common Shares as
shall from time to time be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Shares at any time (assuming that, at the time of the computation of
such number of shares or securities, all such Debt Securities would be held by a single holder);
provided, however, that nothing contained herein shall preclude the Company from
satisfying its obligations in respect of the conversion of the Debt Securities by delivery of
purchased shares of Common Shares which are held in the treasury of the Company. The Company shall
from time to time, in accordance with the laws of the State of Ohio, use its best efforts to cause
the authorized amount of the Common Shares to be increased if the aggregate of the authorized
amount of the Common Shares remaining unissued and the issued shares of such Common Shares in its
treasury (other than any such shares reserved for issuance in any other connection) shall not be
sufficient to permit the conversion of all Debt Securities.




          (b) If any shares of Common Shares which would be issuable upon conversion of Debt Securities
hereunder require registration with or approval of any governmental authority before such shares or
securities may be issued upon such conversion, the Company will in good faith and as expeditiously
as possible endeavor to cause such shares or securities to be duly registered or approved, as the
case may be. The Company will endeavor to list the shares of Common Shares required to be delivered
upon conversion of the Debt Securities prior to such delivery upon the principal national
securities exchange upon which the outstanding Common Shares are listed at the time of such
delivery.




          Section 17.08. Taxes on Conversion.




          The Company shall pay any and all documentary, stamp or similar issue or transfer taxes that
may be payable in respect of the issue or delivery of shares of Common Shares on conversion of Debt
Securities pursuant hereto. The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue or delivery of shares of Common
Shares or the portion, if any, of the Debt Securities which are not so converted in a name other
than that in which the Debt Securities so converted were registered, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the Company the amount
of such tax or has established to the satisfaction of the Company that such tax has been paid.




          Section 17.09. Conversion After Record Date.




          If any Debt Securities are surrendered for conversion subsequent to the record date preceding
an Interest Payment Date but on or prior to such Interest Payment Date (except Debt Securities
called for redemption on a Redemption Date between such record date and Interest Payment Date), the
Holder of such Debt Securities at the close of business on such record date shall be entitled to
receive the interest payable on such Debt Securities on such Interest Payment Date notwithstanding
the conversion thereof. Debt Securities surrendered for conversion during the period from the close
of business on any record date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Debt Securities




80









 







which have been called for redemption on a Redemption Date within such period) be accompanied
by payment to the Company and in the Currency acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the Debt Securities being surrendered for
conversion. Except as provided in this Section 17.09, no adjustments in respect of payments of
interest on Debt Securities surrendered for conversion or any dividends or distributions of
interest on the Common Shares issued upon conversion shall be made upon the conversion of any Debt
Securities.




          Section 17.10. Company Determination Final.




          Any determination that the Company or the Board of Directors must make pursuant to this
Article is conclusive.




          Section 17.11. Trustee’s Disclaimer.




          The Trustee has no duty to determine when an adjustment under this Article should be made, how
it should be made or what it should be. The Trustee makes no representation as to the validity or
value of any securities or assets issued upon conversion of Debt Securities. The Trustee shall not
be responsible for the Company’s failure to comply with this Article. Each Conversion Agent other
than the Company shall have the same protection under this Section as the Trustee.




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




	 	 	 	 	 
	 	THE SCOTTS MIRACLE-GRO COMPANY

 	 
	 	By: 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	_________________________, as Trustee

 	 
	 	By: 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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