exv4w6






Exhibit 4.6




 





PIPER JAFFRAY COMPANIES




AND




[•], Trustee




Subordinated Indenture




Dated as of [•]




 















 





CROSS REFERENCE SHEET(1)



Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of [•], between Piper
Jaffray Companies and [•], Trustee:




	 	 	 	 	 
	Section of the Act	 	Section of the Indenture
	310(a)(1) and (2)
	 	 	 	6.09
	310(a)(3) and (4)
	 	Inapplicable
	310(b)
	 	6.08 and 6.10(a), (b) and (d)
	310(c)
	 	Inapplicable
	311(a)
	 	[Inapplicable]
	311(b)
	 	[Inapplicable]
	312(a)
	 	 	 	4.01
	312(b)
	 	Inapplicable
	312(c)
	 	Inapplicable
	313(a)
	 	 	 	4.03
	313(b)(1)
	 	Inapplicable
	313(b)(2)
	 	Inapplicable
	313(c)
	 	 	 	4.03
	313(d)
	 	 	 	4.02
	314(a)
	 	 	 	4.02
	314(b)
	 	Inapplicable
	314(c)(1) and (2)
	 	 	 	11.05
	314(c)(3)
	 	Inapplicable
	314(d)
	 	Inapplicable
	314(e)
	 	 	 	11.05
	314(f)
	 	Inapplicable
	315(a), (c) and (d)
	 	 	 	6.01
	315(b)
	 	 	 	5.11
	315(e)
	 	 	 	5.12
	316(a)(1)
	 	 	 	5.09
	316(a)(2)
	 	Inapplicable
	316(b)
	 	 	 	5.07
	317(a)(1)
	 	 	 	5.02
	317(a)(2)
	 	 	 	5.02(a)
	317 (b)
	 	3.04(a) and (b)
	318(a)
	 	 	 	11.07








 




			
	(1)	 	This Cross Reference Sheet is not part of the Indenture.
















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	Section 1.01 Certain Terms Defined
	 	 	1	 
	ARTICLE 2 SECURITIES
	 	 	5	 
	Section 2.01 Forms Generally
	 	 	5	 
	Section 2.02 Form of Trustee’s Certificate of Authentication
	 	 	5	 
	Section 2.03 Amount Unlimited; Issuable in Series
	 	 	5	 
	Section 2.04 Authentication and Delivery of Securities
	 	 	7	 
	Section 2.05 Execution of Securities
	 	 	9	 
	Section 2.06 Certificate of Authentication
	 	 	9	 
	Section 2.07 Denomination and Date of Securities; Payments of Interest
	 	 	9	 
	Section 2.08 Registration, Transfer and Exchange
	 	 	10	 
	Section 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities
	 	 	12	 
	Section 2.10 Cancellation of Securities; Disposition Thereof
	 	 	13	 
	Section 2.11 Temporary Securities
	 	 	13	 
	ARTICLE 3 COVENANTS OF THE ISSUER
	 	 	13	 
	Section 3.01 Payment of Principal and Interest
	 	 	13	 
	Section 3.02 Offices for Payments, etc
	 	 	14	 
	Section 3.03 Appointment to Fill a Vacancy in Office of Trustee
	 	 	14	 
	Section 3.04 Paying Agents
	 	 	14	 
	Section 3.05 Written Statement to Trustee
	 	 	15	 
	ARTICLE 4 SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
	 	 	15	 
	Section 4.01 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders
	 	 	15	 
	Section 4.02 Reports by the Issuer
	 	 	15	 
	Section 4.03 Reports by the Trustee
	 	 	16	 
	ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON DEFAULT OR EVENT OF DEFAULT
	 	 	16	 
	Section 5.01 Event of Default Defined; Acceleration of Maturity; Waiver of Event of Default
	 	 	16	 
	Section 5.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt
	 	 	17	 
	Section 5.03 Application of Proceeds
	 	 	18	 
	Section 5.04 Suits for Enforcement
	 	 	19	 
	Section 5.05 Restoration of Rights on Abandonment of Proceedings
	 	 	19	 
	Section 5.06 Limitations on Suits by Securityholders; Default Defined
	 	 	19	 
	Section 5.07 Unconditional Right of Securityholders to Institute Certain Suits
	 	 	20	 
	Section 5.08 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
	 	 	20	 
	Section 5.09 Control by Holders of Securities
	 	 	20	 
	Section 5.10 Waiver of Past Defaults
	 	 	21	 
	Section 5.11 Trustee to Give Notice of Default; But May Withhold in Certain Circumstances
	 	 	21	 
	Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs
	 	 	21	 
	ARTICLE 6 CONCERNING THE TRUSTEE
	 	 	22	 
	Section 6.01 Duties and Responsibilities of the Trustee; During Default; Prior to Default
	 	 	22	 
	Section 6.02 Certain Rights of the Trustee
	 	 	22	 
	Section 6.03 Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof
	 	 	23	 
	Section 6.04 Trustee and Agents May Hold Securities or Coupons; Collections, etc
	 	 	23	 
	Section 6.05 Moneys Held by Trustee
	 	 	23	 
	Section 6.06 Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	23	 
	Section 6.07 Right of Trustee to Rely on Officer’s Certificate, etc
	 	 	24	 
	Section 6.08 Disqualification; Conflicting Interests
	 	 	24	 
	Section 6.09 Persons Eligible for Appointment as Trustee
	 	 	24	 






i









 






	 	 	 	 	 
	 	 	PAGE	 
	Section 6.10 Resignation and Removal; Appointment of Successor Trustee
	 	 	24	 
	Section 6.11 Acceptance of Appointment by Successor Trustee
	 	 	25	 
	Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee
	 	 	26	 
	Section 6.13 Appointment of Authenticating Agent
	 	 	26	 
	ARTICLE 7 CONCERNING THE SECURITYHOLDERS
	 	 	27	 
	Section 7.01 Evidence of Action Taken by Securityholders
	 	 	27	 
	Section 7.02 Proof of Execution of Instruments and of Holding of Securities
	 	 	27	 
	Section 7.03 Holders to Be Treated as Owners
	 	 	28	 
	Section 7.04 Securities Owned by Issuer Deemed Not Outstanding
	 	 	28	 
	Section 7.05 Right of Revocation of Action Taken
	 	 	29	 
	ARTICLE 8 SUPPLEMENTAL INDENTURES
	 	 	29	 
	Section 8.01 Supplemental Indentures Without Consent of Securityholders
	 	 	29	 
	Section 8.02 Supplemental Indentures with Consent of Securityholders
	 	 	30	 
	Section 8.03 Effect of Supplemental Indenture
	 	 	31	 
	Section 8.04 Documents to Be Given to Trustee
	 	 	31	 
	Section 8.05 Notation on Securities in Respect of Supplemental Indentures
	 	 	31	 
	Section 8.06 Subordination Unimpaired
	 	 	31	 
	ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	31	 
	Section 9.01 Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain
Conditions
	 	 	31	 
	Section 9.02 Successor Corporation Substituted
	 	 	32	 
	Section 9.03 Opinion of Counsel Delivered to Trustee
	 	 	32	 
	ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
	 	 	32	 
	Section 10.01 Satisfaction and Discharge of Indenture
	 	 	32	 
	Section 10.02 Application by Trustee of Funds Deposited for Payment of Securities
	 	 	35	 
	Section 10.03 Repayment of Moneys Held by Paying Agent
	 	 	36	 
	Section 10.04 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
	 	 	36	 
	Section 10.05 Indemnity for U.S. Government Obligations
	 	 	36	 
	ARTICLE 11 MISCELLANEOUS PROVISIONS
	 	 	36	 
	Section 11.01 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability
	 	 	36	 
	Section 11.02 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities
and Coupons
	 	 	36	 
	Section 11.03 Successors and Assigns of Issuer Bound by Indenture
	 	 	36	 
	Section 11.04 Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons
	 	 	36	 
	Section 11.05 Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein
	 	 	37	 
	Section 11.06 Payments Due on Saturdays, Sundays or Holidays
	 	 	38	 
	Section 11.07 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
	 	 	38	 
	Section 11.08 New York Law to Govern
	 	 	38	 
	Section 11.09 Counterparts
	 	 	38	 
	Section 11.10 Effect of Headings
	 	 	38	 
	Section 11.11 Securities in a Foreign Currency
	 	 	38	 
	Section 11.12 Judgment Currency
	 	 	38	 
	ARTICLE 12 REDEMPTION OF SECURITIES AND SINKING FUNDS
	 	 	39	 
	Section 12.01 Applicability of Article
	 	 	39	 
	Section 12.02 Notice of Redemption; Partial Redemptions
	 	 	39	 
	Section 12.03 Payment of Securities Called for Redemption
	 	 	40	 
	Section 12.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption
	 	 	41	 
	Section 12.05 Mandatory and Optional Sinking Funds
	 	 	41	 
	ARTICLE 13 SUBORDINATION
	 	 	42	 
	Section 13.01 Securities and Coupons Subordinated to Senior Indebtedness
	 	 	42	 
	Section 13.02 Disputes with Holders of Certain Senior Indebtedness
	 	 	43	 
	Section 13.03 Subrogation
	 	 	43	 
	Section 13.04 Obligation of Issuer Unconditional
	 	 	44	 
	Section 13.05 Payments on Securities and Coupons Permitted
	 	 	44	 
	Section 13.06 Effectuation of Subordination by Trustee
	 	 	44	 
	Section 13.07 Knowledge of Trustee
	 	 	44	 
	Section 13.08 Trustee May Hold Senior Indebtedness
	 	 	44	 
	Section 13.09 Rights of Holders of Senior Indebtedness Not Impaired
	 	 	45	 






ii









 






	 	 	 	 	 
	 	 	PAGE	 
	Section 13.10 Article Applicable to Paying Agents
	 	 	45	 
	Section 13.11 Trustee; Compensation Not Prejudiced
	 	 	45	 







iii









 








     THIS SUBORDINATED INDENTURE, dated as of [•] between Piper Jaffray Companies, a Delaware
corporation (the “Issuer”), and [•], as trustee (the “Trustee”),



W I T N E S S E T H :




     WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;



     WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



NOW, THEREFORE:




     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities and of the coupons, if any, appertaining
thereto as follows:



ARTICLE 1

DEFINITIONS




     Section 1.01 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust
Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such accounting
principles as are generally accepted at the time of any computation. The words “herein”, “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.



     “Authenticating Agent” shall have the meaning set forth in Section 6.13.



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



     “Board of Directors” means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act on its behalf.



     “Board Resolution” means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted or consented to by the Board of
Directors and to be in full force and effect, and delivered to the Trustee. Where any provision of
the Indenture refers to action to be taken pursuant to a Board Resolution (including the
establishment of any series of Securities and the form and terms thereof), such



1









 







action may be taken by any committee of the Board of Directors or any officer or employee of
the Issuer authorized to take such action by a Board Resolution.




     “Business Day” means, with respect to any Security, unless otherwise specified pursuant to
Section 2.03, a day that in the city (or in any of the cities, if more than one) in which amounts
are payable, as specified in the form of such Security, is not a day on which banking institutions
are authorized or required by law or regulation to close.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties on such date.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located in [•].



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



     “covenant defeasance” shall have the meaning set forth in Section 10.01(c).



     “Default” shall have the meaning set forth in Section 5.06.



     “Depositary” means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer
pursuant to Section 2.03 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 Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.



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



     “Event of Default” means any event or condition specified as such in Section 5.01.



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



     “Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean (a) in the
case of any Registered Security, the Person in whose name such Security is registered in the
security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b)
in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.



     “Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and shall include the forms
and terms of particular series of Securities established as contemplated hereunder.



     “Interest” means, when used with respect to non-interest bearing Securities, interest payable
after maturity.



     “Issuer” means (except as otherwise provided in Article 6) Piper Jaffray Companies, a Delaware
corporation and, subject to Article 9, its successors and assigns.



     “Issuer Order” means a written statement, request or order of the Issuer signed in its name by
any one of the following: the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the President, the Chief Operating Officer, the General Counsel, the Treasurer,
an Assistant Treasurer, the Secretary, an Assistant



2









 







Secretary or any other person authorized by the Board of Directors to execute any such
written statement, request or order.




     “Judgment Currency” shall have the meaning set forth in Section 11.12.



     “Officer’s Certificate” means a certificate (i) signed by any one of the following: the
Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President,
the Chief Operating Officer, the General Counsel, the Treasurer, an Assistant Treasurer, the
Secretary, an Assistant Secretary or any other person authorized by the Board of Directors to
execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply
with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.05.



     “Opinion of Counsel” means an opinion in writing signed by the General Counsel of the Issuer
or by such other legal counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.05.



     “original issue date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.01.



     “Outstanding” when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except



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



     (b) Securities, or portions thereof, for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.01) in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent), provided that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as herein provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and



     (c) Securities which shall have been paid or in substitution for which other Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.09 (except with respect to
any such Security as to which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding obligation of the
Issuer).



     In determining whether the Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.01.



     “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities.



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



3









 





     “principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.



     “record date” shall have the meaning set forth in Section 2.07.



     “Redemption Notice Period” shall have the meaning set forth in Section 12.02.



     “Registered Global Security”, means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.04,
and bearing the legend prescribed in Section 2.04.



     “Registered Security” means any Security registered on the Security register of the Issuer.



     “Required Currency” shall have the meaning set forth in Section 11.12.



     “Responsible Officer” when used with respect to the Trustee means the chairman of the Board of
Directors, any vice chairman of the board of directors, the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the executive committee, the president,
any vice president, (whether or not designated by numbers or words added before or after the title
“vice president”) the cashier, the secretary, the treasurer, any trust officer, any assistant trust
officer, any assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of his knowledge
of and familiarity with the particular subject.



     “Security” or “Securities” has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.



     “Senior Indebtedness” means (i) obligations (other than non-recourse obligations, the
Securities or any other obligations specifically designated as being subordinate in right of
payment to Senior Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, and amendments, renewals,
extensions, modifications and refundings of any such indebtedness or obligation and (ii) if
provided in the supplemental indenture under which a series of Securities is issued or in the form
of Security for such series, any additional obligations that the Issuer determines to include
within the definition of Senior Indebtedness in order to assure that the Securities of such series
will be accorded the regulatory capital recognition desired by the Issuer in accordance with Rule
15c3-1 under the Securities Exchange Act of 1934, as amended, or any other rule or regulation
governing the definition of capital that is applicable to the Issuer or its affiliates.



     “Trust Indenture Act of 1939” means the Trust Indenture Act of 1939.



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article 6, shall also include any successor trustee. “Trustee” shall also
mean or include each Person who is then a trustee hereunder and if at any time there is more than
one such Person, “Trustee” as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.



     “Unregistered Security” means any Security other than a Registered Security.



     “U.S. Government Obligations” shall have the meaning set forth in Section 10.01(a).



     “Yield to Maturity” means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.



4









 





ARTICLE 2

SECURITIES




     Section 2.01 Forms Generally. The Securities of each series and the Coupons, if any,
to be attached thereto shall be substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution,
an Officer’s Certificate detailing such establishment) or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.



     The definitive Securities and Coupons, if any, shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined by the officers
executing such Securities and Coupons, if any, as evidenced by their execution of such Securities
and Coupons, if any.



     Section 2.02 Form of Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication on all Securities shall be in substantially the following form:



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




as Trustee




By:

Authorized Officer”




     If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustee’s Certificate of Authentication to be borne by the Securities of each
such series shall be substantially as follows:



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




as Authenticating Agent




By:

Authorized Officer”




     Section 2.03 Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more series and the Securities of each such series
shall rank equally and pari passu with the Securities of each other series, but all Securities
issued hereunder shall be subordinate and junior in right of payment, to the extent and in the
manner set forth in Article 13, to all Senior Indebtedness of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officer’s Certificate detailing such
establishment) or established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,



     (a) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series;



5









 





     (b) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 2.08, 2.09, 2.11, 8.05 or 12.03);



     (c) if other than Dollars, the coin or currency in which the Securities of that series are
denominated (including, but not limited to, any Foreign Currency);



     (d) the date or dates on which the principal of the Securities of the series is payable;



     (e) the rate or rates at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such interest shall be payable and
(in the case of Registered Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such rate or rates or date or dates
shall be determined;



     (f) the place or places where the principal of and any interest on Securities of the series
shall be payable (if other than as provided in Section 3.02);



     (g) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option
and the period or periods within which, the price or prices at which and any terms and conditions,
including the Redemption Notice Period, upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;



     (h) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period or periods within which and any
terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;



     (i) if other than denominations of $1,000 and any integral multiple thereof in the case of
Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be issuable;



     (j) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof;



     (k) if other than the coin or currency in which the Securities of that series are denominated,
the coin or currency in which payment of the principal of or interest on the Securities of such
series shall be payable;



     (l) if the principal of or interest on the Securities of such series are to be payable, at the
election of the Issuer or a Holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and the terms and conditions upon
which, such election may be made;



     (m) if the amount of payments of principal of and interest on the Securities of the series may
be determined with reference to an index based on a coin or currency other than that in which the
Securities of the series are denominated, or with reference to any currencies, securities or
baskets of securities, commodities or indices, the manner in which such amounts shall be
determined;



     (n) if the Holders of the Securities of the series may convert or exchange the Securities of
the series into or for securities of the Issuer or of other entities or other property (or the cash
value thereof), the specific terms of and period during which such conversion or exchange may be
made;



     (o) whether the Securities of the series will be issuable as Registered Securities (and if so,
whether such Securities will be issuable as Registered Global Securities) or Unregistered
Securities (with or without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale, transfer, exchange or delivery of Unregistered Securities or
Registered Securities or the payment of interest thereon and, if other than as provided in Section
2.08, the terms upon which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;



6









 





     (p) whether and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. Person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the
option to redeem such Securities rather than pay such additional amounts;



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



     (r) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars
or any other agents with respect to the Securities of such series;



     (s) any additions, modifications or deletions in the Defaults, Events of Default or covenants
of the Issuer set forth herein with respect to the Securities of such series;



     (t) any modifications to the definition of Senior Indebtedness, as contemplated by clause (ii)
thereof; and



     (u) any other terms of the series.



     All Securities of any one series and Coupons, if any, appertaining thereto, shall be
substantially identical, except in the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board Resolution or Officer’s Certificate
referred to above or as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to such Board Resolution, such Officer’s
Certificate or in any such indenture supplemental hereto.



     Notwithstanding Section 2.03(b) hereof and unless otherwise expressly provided with respect to
a series of Securities, the aggregate principal amount of a series of Securities may be increased
and additional Securities of such series may be issued up to the maximum aggregate principal amount
authorized with respect to such series as increased.



     Section 2.04 Authentication and Delivery of Securities. The Issuer may deliver
Securities of any series having attached thereto appropriate Coupons, if any, executed by the
Issuer to the Trustee for authentication together with the applicable documents referred to below
in this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or
upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by an Issuer Order. The maturity date, original issue date, interest rate and
any other terms of the Securities of such series and Coupons, if any, appertaining thereto
(including Redemption Notice Periods) shall be determined by or pursuant to such Issuer Order and
procedures. If provided for in such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs 2.04(b), 2.04(c) and 2.04(d)
below only at or before the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.01) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:



     (a) an Issuer Order requesting such authentication and setting forth delivery instructions if
the Securities and Coupons, if any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (i) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (ii) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order,
(iii) the maturity date or dates, original issue date or dates, interest rate or rates and any
other terms of Securities of such series (including



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Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such
procedures and (iv) if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly
authorized agent or agents, which oral instructions shall be promptly confirmed in writing;



     (b) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities
and Coupons, if any, were established;



     (c) an Officer’s Certificate setting forth the form or forms and terms of the Securities and
Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any,
have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and



     (d) at the option of the Issuer, either an Opinion of Counsel, or a letter addressed to the
Trustee permitting it to rely on an Opinion of Counsel, substantially to the effect that:




     (i) the forms of the Securities and Coupons, if any, have been duly authorized and
established in conformity with the provisions of this Indenture;




     (ii) in the case of an underwritten offering, the terms of the Securities have been
duly authorized and established in conformity with the provisions of this Indenture, and, in
the case of an offering that is not underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officer’s Certificate or a supplemental
indenture in accordance with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall have been established,
all such terms will have been duly authorized by the Issuer and will have been established
in conformity with the provisions of this Indenture; and




     (iii) when the Securities and Coupons, if any, have been executed by the Issuer and
authenticated by the Trustee in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they will have been duly issued
under this Indenture and will be valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled to the benefits of this
Indenture.



     In rendering such opinions, such counsel may qualify any opinions as to enforceability by
stating that such enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and
is subject to general principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such Securities and any Coupons. Such
counsel may rely, as to all matters governed by the laws of jurisdictions other than the State of
New York and the federal law of the United States, upon opinions of other counsel (copies of which
shall be delivered to the Trustee), who shall be counsel reasonably satisfactory to the Trustee, in
which case the opinion shall state that such counsel believes he and the Trustee are entitled so to
rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of the Issuer and its
subsidiaries and certificates of public officials.



     The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee’s own rights, duties or immunities under the
Securities, this Indenture or otherwise.



     If the Issuer shall establish pursuant to Section 2.03 that the Securities of a series are to
be issued in the form of one or more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered



8









 







Global Securities that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially
to the following effect: “Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a whole by the
Depositary to the 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.”




     Each Depositary designated pursuant to Section 2.03 must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.



     Section 2.05 Execution of Securities. The Securities and, if applicable, each Coupon
appertaining thereto shall be signed on behalf of the Issuer by any one of the following: the
Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President,
the Chief Operating Officer, the General Counsel, the Treasurer, an Assistant Treasurer, the
Secretary, an Assistant Secretary or any other person authorized by the Board of Directors to
execute Securities or, if applicable, Coupons, which Securities or Coupons may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the present or any future
such officers. Minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee. In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the Security or Coupon so
signed (or the Security to which the Coupon so signed appertains) shall be authenticated and
delivered by the Trustee or disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may be signed on behalf
of the Issuer by such persons as, at the actual date of the execution of such Security or Coupon,
shall be the proper officers of the Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.



     Section 2.06 Certificate of Authentication. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by
the Trustee by the manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon shall be entitled
to the benefits of this Indenture or shall be valid and obligatory for any purpose until the
certificate of authentication on the Security to which such Coupon appertains shall have been duly
executed by the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.



     Section 2.07 Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.03 or, with respect to the Registered
Securities of any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the officers of the Issuer executing the same may determine with
the approval of the Trustee, as evidenced by the execution and authentication thereof.



     Each Registered Security shall be dated the date of its authentication. Each Unregistered
Security shall be dated as provided in the Board Resolution referred to in Section 2.03. The
Securities of each series shall bear interest, if any, from the date, and such interest shall be
payable on the dates, established as contemplated by Section 2.03.



     The Person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if



9









 







and to the extent the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at the close of
business on a subsequent record date (which shall be not less than five Business Days prior to the
date of payment of such defaulted interest) established by notice given by mail by or on behalf of
the Issuer to the Holders of Registered Securities not less than 15 days preceding such subsequent
record date. The term “record date” as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such date is so established, if such interest payment date
is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.




     Section 2.08 Registration, Transfer and Exchange. The Issuer will keep at each
office or agency to be maintained for the purpose as provided in Section 3.02 for each series of
Securities a register or registers in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers shall be open for
inspection by the Trustee.



     Upon due presentation for registration of transfer of any Registered Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same series, maturity date,
interest rate and original issue date in authorized denominations for a like aggregate principal
amount.



     Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable
by delivery.



     At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02 and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as otherwise specified pursuant
to Section 2.03, at the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.02,
with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to Section 2.03, such
Unregistered Securities may be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.02 or as specified pursuant to Section 2.03, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Unless otherwise specified pursuant to Section 2.03, Registered
Securities of any series may not be exchanged for Unregistered Securities of such series. Whenever
any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange or transfer provided for in this
Indenture shall be promptly cancelled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.



     All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or



10









 







instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by
the Holder or his attorney duly authorized in writing.




     The Issuer may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.



     The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days next preceding the first mailing of notice of redemption of
Securities of such series to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed or (c) any Securities if the Holder thereof has exercised any
right to require the Issuer to repurchase such Securities, in whole or in part, except, in the case
of any Security to be repurchased in part, the portion thereof not so to be repurchased.



     Notwithstanding any other provision of this Section 2.08, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the 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 any Registered Securities of a series represented by one or
more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.04, the Issuer shall appoint a successor
Depositary eligible under Section 2.04 with respect to such Registered Securities. If a successor
Depositary eligible under Section 2.04 for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer’s election pursuant to Section 2.03 that such Registered Securities be represented by
one or more Registered Global Securities shall no longer be effective and the Issuer will execute,
and the Trustee, upon receipt of an Officer’s Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities of such series in
definitive registered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such Registered Global Security or
Securities.



     Subject to the procedures of the Depositary, the Issuer 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
Registered Global Securities shall no longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the Trustee, upon receipt of an Officer’s
Certificate for the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered form without coupons,
in any authorized denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered Securities, in exchange
for such Registered Global Security or Securities.



     If specified by the Issuer pursuant to Section 2.03 with respect to Securities represented by
a Registered Global Security, the Depositary for such Registered Global Security may surrender such
Registered Global Security in exchange in whole or in part for Securities of the same series in
definitive registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver,
without service charge,



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



     (b) to such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Registered Global Security and
the aggregate principal amount of Registered Securities authenticated and delivered pursuant to
clause (a) above.



11









 





     Upon the exchange of a Registered Global Security for Securities in definitive registered form
without coupons, in authorized denominations, such Registered Global Security shall be cancelled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form
without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.08
shall be registered in such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in whose names such
Securities are so registered.



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



     Notwithstanding anything herein or in the terms of any series of Securities to the contrary,
none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than
the Issuer, shall rely on an Officer’s Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Issuer (such as, for example, the inability of the
Issuer to deduct from its income, as computed for Federal income tax purposes, the interest payable
on the Unregistered Securities) under then applicable United States Federal income tax laws.



     Section 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security or any Coupon appertaining to any Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the
written request of any officer of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for
the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to
which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or
theft of such Security or Coupon and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to the Trustee or such agent.



     Upon the issuance of any substitute Security or Coupon, the Issuer may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee or its agent)
connected therewith. In case any Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of
the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof.



     Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement



12









 







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




     Section 2.10 Cancellation of Securities; Disposition Thereof. All Securities and
Coupons surrendered for payment, redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee
or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent shall dispose of cancelled Securities and
Coupons held by it and deliver a certificate of disposition to the Issuer. If the Issuer or its
agent shall acquire any of the Securities or Coupons, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities or Coupons unless and
until the same are delivered to the Trustee or its agent for cancellation.



     Section 2.11 Temporary Securities. Pending the preparation of definitive Securities
for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as
Registered Securities without coupons, or as Unregistered Securities with or without coupons
attached thereto, of any authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary Securities may contain
such references to any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.02 and, in the case of Unregistered Securities, at
any agency maintained by the Issuer for such purpose as specified pursuant to Section 2.03, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities of such series an
equal aggregate principal amount of definitive Securities of the same series having authorized
denominations and, in the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series, unless otherwise established
pursuant to Section 2.03. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.03 (including any provision that Unregistered Securities of
such series initially be issued in the form of a single global Unregistered Security to be
delivered to a depositary or agency located outside the United States and the procedures pursuant
to which definitive or global Unregistered Securities of such series would be issued in exchange
for such temporary global Unregistered Security).



ARTICLE 3

COVENANTS OF THE ISSUER




     Section 3.01 Payment of Principal and Interest. The Issuer covenants and agrees for
the benefit of each series of Securities that it will duly and punctually pay or cause to be paid
the principal of, and interest on, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the Coupons, if any,
appertaining thereto and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered Security provides
that interest thereon may be paid while such Security is in temporary form, the interest on any
such temporary Unregistered Security (together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.03. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only to or



13









 







upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by
wire transfer or by mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the Issuer.




     Section 3.02 Offices for Payments, etc. So long as any Registered Securities are
authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will
maintain in [•], an office or agency where the Registered Securities of each series may be
presented for payment, where the Securities of each series may be presented for exchange as is
provided in this Indenture and, if applicable, pursuant to Section 2.03 and where the Registered
Securities of each series may be presented for registration of transfer as in this Indenture
provided.



     The Issuer initially appoints the Corporate Trust Office of the Trustee in [•], as its agency
for the foregoing purposes. The Issuer may subsequently appoint a different office or agency of
the Issuer in [•]. The Issuer further initially appoints the Trustee at said Corporate Trust
Office as Security registrar for each series of Securities. The Issuer will have the right to
remove and replace from time to time the Security registrar for any series of Securities; provided
that no such removal or replacement will be effective until a successor Security registrar with
respect to such series of Securities has been appointed by the Issuer and has accepted such
appointment.



     The Issuer will maintain one or more offices or agencies in a city or cities located outside
the United States (including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to an address in, the
United States unless pursuant to applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons appertaining thereto which
are payable in Dollars may be made at an agency of the Issuer maintained in [•], if such payment in
Dollars at each agency maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls or other similar
restrictions.



     The Issuer will maintain in [•], an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.



     The Issuer will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. In case the Issuer shall fail to maintain any agency
required by this Section to be located in [•], or shall fail to give such notice of the location or
of any change in the location of any of the above agencies, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Trustee.



     The Issuer may from time to time designate one or more additional offices or agencies where
the Securities of a series and any Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.03 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer of its obligation to
maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt
written notice of any such designation or rescission thereof.



     Section 3.03 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.



     Section 3.04 Paying Agents. Whenever the Issuer shall appoint a paying agent other
than the Trustee with respect to the Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,



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     (a) that it will hold all sums received by it as such agent for the payment of the principal
of or interest on the Securities of such series (whether such sums have been paid to it by the
Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto, if any, or of the
Trustee,



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



     (c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s
written request at any time during the continuance of the failure referred to in clause 3.04(b)
above.



     The Issuer will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.



     If the Issuer shall act as its own paying agent with respect to the Securities of any series,
it will, on or before each due date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of
such series or the Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.



     Anything in this Section to the contrary notwithstanding, but subject to Section 10.01, the
Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



     Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Sections 10.03 and 10.04.



     Section 3.05 Written Statement to Trustee. The Issuer will furnish to the Trustee on
or before March 31 in each year (beginning with March 31, [•]) a brief certificate (which need not
comply with Section 11.05) from the principal executive, financial or accounting officer of the
Issuer stating that in the course of the performance by the signer of his duties as an officer of
the Issuer he would normally have knowledge of any default or non-compliance by the Issuer in the
performance of any covenants or conditions contained in this Indenture, stating whether or not he
has knowledge of any such default or non-compliance and, if so, specifying each such default or
non-compliance of which the signer has knowledge and the nature thereof.



ARTICLE 4

SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE




     Section 4.01 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders. If and so long as the Trustee shall not be the Security registrar for the
Securities of any series, the Issuer and any other obligor on the Securities will furnish or cause
to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Registered Securities of such series pursuant to Section
312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record
date for the payment of interest on such Registered Securities, as hereinabove specified, as of
such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing
Registered Securities in each year and (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request as of a date not more than
15 days prior to the time such information is furnished.



     Section 4.02 Reports by the Issuer. The Issuer shall file with the Trustee and the
Commission, and transmit to Holders such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act of 1939 at the same time
and in the manner pursuant to such Act; provided that such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or Section



15









 




15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days of
filing with the Commission. Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein,
including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates).





     Section 4.03 Reports by the Trustee. Any Trustee’s report required under Section
313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before July 15 in each year
beginning July 15, [•], as provided in Section 313(c) of the Trust Indenture Act of 1939, so long
as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 days prior thereto.



ARTICLE 5

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON DEFAULT OR EVENT OF DEFAULT




     Section 5.01 Event of Default Defined; Acceleration of Maturity; Waiver of Event of
Default. “Event of Default” with respect to Securities of any series wherever used herein,
means each one of the following events which shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is specifically modified in the
supplemental indenture, if any, under which such series of Securities is issued:



     (a) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or



     (b) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the
Issuer or for any substantial part of its property, or make any general assignment for the benefit
of creditors; or



     (c) any other Event of Default provided in the supplemental indenture under which such series
of Securities is issued or in the form of Security for such series.



     If an Event of Default with respect to Securities of any series occurs and is continuing,
then, and in each and every such case, except for any series of Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding hereunder by notice
in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such Securities) of all
Securities of such series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become immediately due and payable.



     The foregoing provisions, however, are subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of any and all Securities of such series which shall
have become due otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on overdue installments
of interest, at the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) prescribed therefor in the Securities of such series to the date of such payment or
deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee and
each predecessor Trustee, its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all



16









 







advances made, by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith, and if any and all Defaults with respect to such series, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of such series then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults with respect to such series
and rescind and annul such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent Default or shall impair any right
consequent thereon.




     For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



     Section 5.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The
Issuer covenants that (a) in case default shall be made in the payment of any installment of
interest on any of the Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in case default shall
be made in the payment of all or any part of the principal of any of the Securities of any series
when the same shall have become due and payable, whether upon maturity of the Securities of such
series or upon any redemption or by declaration or otherwise—then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the
whole amount that then shall have become due and payable on all Securities of such series, and such
Coupons, for principal or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) prescribed therefor in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a result of its
negligence or bad faith.



     Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the Holders, whether or not the Securities of such series be
overdue.



     In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities and collect in the
manner provided by law out of the property of the Issuer or other obligor upon the Securities,
wherever situated the moneys adjudged or decreed to be payable.



     In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:



     (a) to file and prove a claim or claims for the whole amount of principal and interest (or, if
the Securities of any series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and unpaid in respect of the
Securities of any 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



17









 







any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor,




     (b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of
the Securities of any series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and



     (c) to collect and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith.



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



     All rights of action and of asserting claims under this Indenture, or under any of the
Securities of any series or Coupons appertaining to such Securities, may be enforced by the Trustee
without the possession of any of the Securities of such series or Coupons appertaining to such
Securities or the production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken.



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



     Section 5.03 Application of Proceeds. Any moneys collected by the Trustee pursuant
to this Article in respect of any series shall, subject to the subordination provisions hereof, be
applied in the following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such
series in reduced principal amounts in exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:



     FIRST: To the payment of costs and expenses applicable to such series in respect of which
moneys have been collected, including reasonable compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith;



     SECOND: In case the principal of the Securities of such series in respect of which moneys
have been collected shall not have become and be then due and payable, to the payment of interest
on the Securities of such series in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such



18









 







interest has been collected by the Trustee) upon the overdue installments of interest at the
rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
prescribed therefor in such Securities, such payments to be made ratably to the Persons entitled
thereto, without discrimination or preference;




     THIRD: In case the principal of the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) prescribed therefor in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity,
or of interest or Yield to Maturity over principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and



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



     Section 5.04 Suits for Enforcement. In case a Default has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.



     Section 5.05 Restoration of Rights on Abandonment of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings had been taken.



     Section 5.06 Limitations on Suits by Securityholders; Default Defined. No Holder of
any Security of any series or of any Coupon appertaining thereto shall have any right by virtue or
by availing of any provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar official or for any
other remedy hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred
therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee pursuant to Section
5.09; it being understood and intended, and being expressly covenanted by the taker and Holder of
every Security or Coupon with every other taker and Holder and the Trustee, that no one or more
Holders of Securities of any series or Coupons appertaining to such Securities shall have any right
in any manner whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holder of Securities or Coupons appertaining to
such Securities, or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all Holders of Securities of the applicable series and
Coupons appertaining to such Securities. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.



19









 





     “Default” with respect to Securities of any series wherever used herein, means each one of the
following events which shall have occurred and be continuing (whatever the reason for such Default
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body) unless it is specifically deleted or modified in the supplemental indenture,
if any, under which such series of Securities is issued:



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



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



     (c) failure on the part of the Issuer duly to observe or perform any other of the covenants or
agreements on the part of the Issuer in the Securities of such series (other than a covenant or
warranty in respect of the Securities of such series a default in the performance or breach of
which is elsewhere in this Section or in Section 5.01 specifically dealt with) or contained in this
Indenture for a period of 90 days after the date on which written notice specifying such failure,
stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy
the same, shall have been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected thereby; or



     (d) an Event of Default with respect to such series specified in Section 5.01; or



     (e) any other Default provided in the supplemental indenture under which such series of
Securities is issued or in the form of Security for such series.



     Section 5.07 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security or Coupon to receive payment of the principal of
and interest on such Security or Coupon on or after the respective due dates expressed in such
Security or Coupon, or to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.



     Section 5.08 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 5.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or Coupons 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.



     No delay or omission of the Trustee or of any Holder of Securities or Coupons to exercise any
right or power accruing upon any Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to Section 5.06, every power and remedy given by this Indenture or by law to
the Trustee or to the Holders of Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Holders of Securities or Coupons.



     Section 5.09 Control by Holders of Securities. The Holders of a majority in
aggregate principal amount of the Securities of any series at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture and provided further that (subject
to the provisions of Section 6.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or



20









 







Responsible Officers of the Trustee shall determine that the action or proceedings so directed
would involve the Trustee in personal liability or if the Trustee in good faith shall so determine
that the actions or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of such series not joining in the giving
of said direction, it being understood that (subject to Section 6.01) the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such
Holders.




     Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.



     Section 5.10 Waiver of Past Defaults. Prior to the acceleration of the maturity of
the Securities of any series as provided in Section 5.01, the Holders of a majority in aggregate
principal amount of the Securities of such series at the time Outstanding with respect to which a
Default shall have occurred and be continuing may on behalf of the Holders of all the Securities of
such series waive any past default or Default and its consequences, except a default in the payment
of principal or interest (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by acceleration has been
deposited with the Trustee) or a default in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder of each Security affected. In the case of
any such waiver, the Issuer, the Trustee and the Holders of all such Securities shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.



     Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Default or Event of Default arising therefrom shall be deemed to have
been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.



     Section 5.11 Trustee to Give Notice of Default; But May Withhold in Certain
Circumstances. The Trustee shall, within ninety days after the occurrence of a default with
respect to the Securities of any series, give notice of all defaults with respect to that series
known to the Trustee (i) if any Unregistered Securities of a series affected are then Outstanding,
to the Holders thereof, (A) by mail to such Holders who have filed their names and addresses with
the Trustee within the two years preceding the notice at such addresses as were so furnished to the
Trustee and (B) either through the customary notice provisions of the clearing system or systems
through which beneficial interests in such Unregistered Securities are owned if such Unregistered
Securities are held only in global form or by publication at least once in an Authorized Newspaper
in the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in
London, and (i) if any Registered Securities of a series affected are then Outstanding, by mailing
notice to the Holders of then Outstanding Registered Securities of each series affected at their
addresses as they shall appear on the registry books, unless in each case such defaults shall have
been cured before the mailing or publication of such notice (the term “defaults” for the purpose of
this Section being hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, a Default or Event of Default); provided that, except in the case of
default in the payment of the principal of or interest on any of the Securities of such series, or
in the payment of any sinking fund installment on 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 or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the Securityholders of such
series.



     Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All
parties to this Indenture agree, and each Holder of any Security or Coupon by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders
of any series holding in the aggregate more than 10% in aggregate principal amount of the
Securities of such series, or to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.



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ARTICLE 6

CONCERNING THE TRUSTEE




     Section 6.01 Duties and Responsibilities of the Trustee; During Default; Prior to
Default. With respect to the Holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of a Default with respect to the Securities of a particular series
and after the curing or waiving of all Defaults which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case a Default with respect to the Securities of a series has occurred (which
has not been cured or waived) the Trustee shall exercise with respect to such series of Securities
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.



     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



     (a) prior to the occurrence of a Default with respect to the Securities of any series and
after the curing or waiving of all such Defaults with respect to such series which may have
occurred:




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




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



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



     (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders pursuant to Section 5.09 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.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.



     The provisions of this Section 6.01 are in furtherance of and subject to Section 315 of the
Trust Indenture Act of 1939.



     Section 6.02 Certain Rights of the Trustee. In furtherance of and subject to the
Trust Indenture Act of 1939, and subject to Section 6.01:



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



22









 





     (b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;



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



     (d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby;



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



     (f) prior to the occurrence of a Default hereunder and after the curing or waiving of all
Defaults, the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if
paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon demand; and



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



     Section 6.03 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof. The recitals contained herein and in the Securities, except
the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the Securities or
Coupons. The Trustee shall not be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.



     Section 6.04 Trustee and Agents May Hold Securities or Coupons; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities or Coupons with the same rights it would
have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.



     Section 6.05 Moneys Held by Trustee. Subject to the provisions of Section 10.04
hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any moneys received by it
hereunder.



     Section 6.06 Compensation and Indemnification of Trustee and Its Prior Claim. The
Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all



23









 







reasonable expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its counsel and of all agents and other Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from its negligence or
bad faith.




     The Issuer also covenants to indemnify the Trustee and each predecessor 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
Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim
to that of the Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular Securities or Coupons, and
the Securities are hereby subordinated to such senior claim.



     Section 6.07 Right of Trustee to Rely on Officer’s Certificate, etc. Subject to
Sections 6.01 and 6.02, whenever in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
by it under the provisions of this Indenture upon the faith thereof.



     Section 6.08 Disqualification; Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such
Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee
under this Indenture with respect to Securities of more than one series.



     Section 6.09 Persons Eligible for Appointment as Trustee. The Trustee for each
series of Securities hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any State or the District of Columbia having a
combined capital and surplus of at least $5,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by Federal, State or
District of Columbia authority. Such corporation shall have a place of business in [•], if there
be such a corporation in such location willing to act upon reasonable and customary terms and
conditions. 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. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.



     The provisions of this Section 6.09 are in furtherance of and subject to Section 310(a) of the
Trust Indenture Act of 1939.



     Section 6.10 Resignation and Removal; Appointment of Successor Trustee. (a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of resignation to the Issuer and (i)
if any Unregistered Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof (A) by mail to such Holders who have filed their names and
addresses with the Trustee within the two years preceding the notice at such addresses as were so
furnished to the Trustee and (B) either through the customary notice provisions of the clearing
system or systems through which beneficial interests in such Unregistered Securities are owned if
such Unregistered Securities are held only in global form or by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an
Authorized Newspaper in London, and (ii) if any Registered Securities of



24









 







a series affected are then Outstanding, by mailing notice of such resignation to the Holders
of then Outstanding Registered Securities of each series affected at their addresses as they shall
appear on the registry books. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series
for at least six months may, subject to the provisions of Section 5.12, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.




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




     (i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act of 1939 with respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.09 and Section 310(a) of the Trust Indenture Act of 1939 and shall fail to resign
after written request therefor by the Issuer or by any Securityholder; or




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


then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at least six months may on behalf
of himself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee. In addition, the Issuer may remove the Trustee
if the Issuer shall determine by a Board Resolution that the services provided by the Trustee
hereunder may be obtained at a substantially lower cost to the Issuer.




     (c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time outstanding may at any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.01 of the action in that regard taken by the Securityholders.



     (d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.



     Section 6.11 Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such series of
its predecessor hereunder, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless,



25









 







on the written request of the Issuer or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section 10.04, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property
or funds held or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.




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



     No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions
of Section 6.09.



     Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Issuer shall give notice thereof (i) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, (A) by mail to such Holders who have filed their names and
addresses with the Trustee within the two years preceding the notice at such addresses as were so
furnished to the Trustee and (B) either through the customary notice provisions of the clearing
system or systems through which beneficial interests in such Unregistered Securities are owned if
such Unregistered Securities are held only in global form or by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an
Authorized Newspaper in London, and (ii) if any Registered Securities of a series affected are then
Outstanding, by mailing notice to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books. If the acceptance
of appointment is substantially contemporaneous with the resignation, then the notice called for by
the preceding sentence may be combined with the notice called for by Section 6.10. If the Issuer
fails to give such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be given at the expense of the Issuer.



     Section 6.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee. 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 qualified under Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 6.09, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.



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



     Section 6.13 Appointment of Authenticating Agent. As long as any Securities of a
series remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval
of the Issuer an authenticating



26









 







agent (the “Authenticating Agent”) which shall be authorized to act on behalf of the Trustee
to authenticate Securities, including Securities issued upon exchange, registration of transfer,
partial redemption or pursuant to Section 2.09. 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 the Trustee. Whenever reference is made in
this Indenture to the authentication and delivery of Securities of any series by the Trustee or to
the Trustee’s Certificate of Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and
a Certificate of Authentication executed on behalf of the Trustee by such Authenticating
Agent. 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 $5,000,000
(determined as provided in Section 6.09 with respect to the Trustee) and subject to supervision or
examination by Federal or State authority.




     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 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 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 Trustee and to the Issuer.



     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 6.13 with respect to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the extent provided in
Section 11.04. 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. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee. Sections 6.02, 6.03, 6.04, 6.06,
6.09 and 7.03 shall be applicable to any Authenticating Agent.



ARTICLE 7

CONCERNING THE SECURITYHOLDERS




     Section 7.01 Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent 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. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.



     Section 7.02 Proof of Execution of Instruments and of Holding of Securities. Subject
to Sections 6.01 and 6.02, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:



     (a) The fact and date of the execution by any Holder of any instrument may be proved by the
certificate of any notary public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by or on behalf of any
legal entity other than an individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same. The fact of the holding by any
Holder of an Unregistered Security of any series, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank,



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banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the Person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities of one or more series specified
therein. The holding by the Person named in any such certificate of any Unregistered Securities of
any series specified therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding (i) another certificate
bearing a later date issued in respect of the same Securities shall be produced, or (ii) the
Security of such series specified in such certificate shall be produced by some other Person, or
(iii) the Security of such series specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.01 and 6.02, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by the Person so executing
such instrument and the amount and numbers of any Security or Securities for such series may also
be proven in accordance with such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for such series may deem
sufficient.




     (b) In the case of Registered Securities, the ownership of such Securities shall be proved by
the Security register or by a certificate of the Security registrar.



     The Issuer may set a record date for purposes of determining the identity of Holders of
Registered Securities of any series entitled to vote or consent to any action referred to in
Section 7.01, which record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60
days nor less than five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Registered Securities of any series,
only Holders of Registered Securities of such series of record on such record date shall be
entitled to so vote or give such consent or revoke such vote or consent.



     Section 7.03 Holders to Be Treated as Owners. The Issuer, the Trustee and any agent
of the Issuer or the Trustee may deem and treat the Person in whose name any Security shall be
registered upon the Security register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of the principal of
and, subject to the provisions of this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of any Coupon as the
absolute owner of such Unregistered Security or Coupon (whether or not such Unregistered Security
or Coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. All such payments so made to any such
Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such Unregistered Security or
Coupon.



     Section 7.04 Securities Owned by Issuer Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on the Securities with
respect to which such determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or any Person directly
or indirectly controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer’s Certificate listing and identifying all Securities,



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if any, known by the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.01 and 6.02, the Trustee shall be entitled to
accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.




     Section 7.05 Right of Revocation of Action Taken. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by
the Holders of the percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and of any Securities issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee
and the Holders of all the Securities affected by such action.



ARTICLE 8

SUPPLEMENTAL INDENTURES




     Section 8.01 Supplemental Indentures Without Consent of Securityholders. The Issuer,
when authorized by a resolution of its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto for one or more of
the following purposes:



     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;



     (b) to evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article 9;



     (c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or
provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such a Default or Event of Default or
may limit the remedies available to the Trustee upon such a Default or Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of the Securities of
such series to waive such a Default or Event of Default;



     (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, provided that no such action shall adversely affect the interests of the
Holders of the Securities or Coupons in any material respect;



     (e) to establish the forms or terms of Securities of any series or of the Coupons appertaining
to such Securities as permitted by Sections 2.01 and 2.03; and



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     (f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.11.



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



     Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 8.02.



     Section 8.02 Supplemental Indentures with Consent of Securityholders. With the
consent (evidenced as provided in Article 7) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its
Board of Directors (which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the Securities of each such
series or of the Coupons appertaining to such Securities; provided, that no such supplemental
indenture shall (a) (i) extend the final maturity of any Security, (ii) reduce the principal amount
thereof, (iii) reduce the rate or extend the time of payment of interest thereon, (iv) reduce any
amount payable on redemption thereof, (v) make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the terms thereof, (vi) modify or
amend any provisions for converting any currency into any other currency as provided in the
Securities or Coupons or in accordance with the terms thereof, (vii) reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon an acceleration
of the maturity thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy
pursuant to Section 5.02, (viii) modify or amend any provisions relating to the conversion or
exchange of the Securities or Coupons for securities of the Issuer or of other entities or other
property (or the cash value thereof), including the determination of the amount of securities or
other property (or cash) into which the Securities shall be converted or exchanged, other than as
provided in the antidilution provisions or other similar adjustment provisions of the Securities or
Coupons or otherwise in accordance with the terms thereof, (ix) alter the provisions of Section
11.11 or Section 11.12 or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of repayment at the option of
the Securityholder, in each case without the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of the Holders of each
Security so affected.



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



     Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 7.01, the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such



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supplemental indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.




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



     Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) if any
Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, (A) by
mail to such Holders who have filed their names and addresses with the Trustee within the two years
preceding the notice at such addresses as were so furnished to the Trustee and (B) either through
the customary notice provisions of the clearing system or systems through which beneficial
interests in such Unregistered Securities are owned if such Unregistered Securities are held only
in global form or by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized Newspaper in London, and (ii)
if any Registered Securities of a series affected are then Outstanding, by mailing notice thereof
by first class mail to the Holders of then Outstanding Registered Securities of each series
affected at their addresses as they shall appear on the registry books, and in each case such
notice shall set forth in general terms the substance of such supplemental indenture. Any failure
of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.



     Section 8.03 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.



     Section 8.04 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.01 and 6.02, may receive an Officer’s Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 8
complies with the applicable provisions of this Indenture.



     Section 8.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such supplemental
indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.



     Section 8.06 Subordination Unimpaired. This Indenture may not be amended to alter
the subordination of any of the Outstanding Securities without the written consent of each holder
of Senior Indebtedness then outstanding that would be adversely affected thereby.



ARTICLE 9

CONSOLIDATION, MERGER, SALE OR CONVEYANCE




     Section 9.01 Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under
Certain Conditions. The Issuer covenants that it will not merge or consolidate with any other
Person or sell, lease or convey all or substantially all of its assets to any other Person, unless
(a) either the Issuer shall be the continuing corporation, or the successor corporation or the
Person which acquires by sale, lease or conveyance substantially all the assets of the Issuer (if
other than the Issuer) shall be a corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia and shall expressly assume the due and
punctual payment of the principal of and interest on all the Securities and Coupons, if any,
according to their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be



31









 







performed or observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (b) the Issuer, such Person or such
successor corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale, lease or conveyance, be in default in the performance of any such
covenant or condition.




     Section 9.02 Successor Corporation Substituted. In case of any such consolidation,
merger, sale, lease or conveyance, and following such an assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein. Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which together with any Coupons appertaining thereto theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously shall have been signed
and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All of the Securities so issued together with any Coupons appertaining thereto
shall in all respects have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.



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



     In the event of any such sale or conveyance (other than a conveyance by way of lease) the
Issuer or any successor corporation which shall theretofore have become such in the manner
described in this Article shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.



     Section 9.03 Opinion of Counsel Delivered to Trustee. The Trustee, subject to the
provisions of Sections 6.01 and 6.02, may receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such assumption, and any such
liquidation or dissolution, complies with the applicable provisions of this Indenture.



ARTICLE 10

SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS




     Section 10.01 Satisfaction and Discharge of Indenture. (a) If at any time (i) the
Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of
any series Outstanding hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall
have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated and all unmatured Coupons
appertaining thereto (other than any Securities of such series and Coupons appertaining thereto
which shall have been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09) or (iii) in the case of any series of Securities where the exact amount
(including the currency of payment) of principal of and interest due on which can be determined at
the time of making the deposit referred to in clause (B) below, (A) all the Securities of such
series and all unmatured Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (B) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.04) or, in the case of any series of Securities the payments on which may only be made
in Dollars, direct obligations of the United States of America, backed by its full faith and credit
(“U.S. Government Obligations”), maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal and interest on all



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Securities of such series and Coupons appertaining thereto on each date that such principal or
interest is due and payable and (2) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and the Securities of
such series; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer with respect to the Securities of such series, then this Indenture
shall cease to be of further effect with respect to the Securities of such series and the Coupons
appertaining thereto (except as to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining thereto and the Issuer’s right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities
or Coupons, (iii) rights of holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the original stated due dates therefor
(but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or
any of them, and (vi) the obligations of the Issuer under Section 3.02) and the Trustee, on demand
of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture as to such series; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and interest on the Securities
and Coupons held by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Indenture or the Securities of such series.




     (b) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officer’s Certificate or indenture supplemental hereto
provided pursuant to Section 2.03. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts (including the
currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (i) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred to in clause (i) below,
and the provisions of this Indenture with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (A) rights of registration of
transfer and exchange of Securities of such series and of Coupons appertaining thereto and the
Issuer’s right of optional redemption, if any, (B) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (C) rights of Holders of Securities and Coupons appertaining
thereto to receive payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (D) the rights, obligations, duties and immunities of the
Trustee hereunder, (E) the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (F) the obligations of the Issuer under Section 3.02) and
the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper
instruments acknowledging the same, if




     (i) with reference to this provision the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto (A) cash in an amount, or (B) in the case of any
series of Securities the payments on which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that such principal
or interest is due and payable and (2) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series;




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



33









 






     (iii) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such opinion shall confirm
that, the Holders of the Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;




     (iv) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with;




     (v) no event or condition shall exist that, pursuant to the provisions of Section
13.01, would prevent the Issuer from making payments of the principal of or interest on the
Securities of such series and Coupons appertaining thereto on the date of such deposit or at
any time during the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the expiration of such
period); and




     (vi) the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that
(x) the trust funds will not be subject to any rights of holders of Senior Indebtedness,
including without limitation those arising under Article 13 of this Indenture, and (y) after
the 91st day following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, except that if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Issuer, no opinion is given as to
the effect of such laws on the trust funds except the following: (A) assuming such trust
funds remained in the Trustee’s possession prior to such court ruling to the extent not paid
to Holders of Securities of such series and Coupons appertaining thereto, the Trustee will
hold, for the benefit of such Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, (B) such Holders will be entitled to
receive adequate protection of their interests in such trust funds if such trust funds are
used, and (C) no property, rights in property or other interests granted to the Trustee or
such Holders in exchange for or with respect to any of such funds will be subject to any
prior rights of holders of Senior Indebtedness, including without limitation those arising
under Article 13 of this Indenture.



     (c) The Issuer shall be released from its obligations under Section 9.01 with respect to the
Securities of any Series, and any Coupons appertaining thereto, Outstanding on and after the date
the conditions set forth below are satisfied (hereinafter, “covenant defeasance”). For this
purpose, such covenant defeasance means that, with respect to the Outstanding Securities of any
series, the Issuer may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or by reason of any reference in such Section to any
other provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default, but the remainder of this Indenture and such Securities and Coupons
shall be unaffected thereby. The following shall be the conditions to application of this
subsection (c) of this Section 10.01:




     (i) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the holders of the Securities of
such series and Coupons appertaining thereto, (A) cash in an amount, or (B) in the case of
any series of Securities the payments on which may only be made in Dollars, U.S. Government
Obligations maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal and interest on all
Securities of such series and Coupons appertaining thereto and (2) any mandatory sinking
fund payments on the day on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series.





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     (ii) No Default or Event of Default or event which with notice or lapse of time or both
would become a Default or an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or, insofar as subsections 5.01(a)
and 5.01(b) are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).




     (iii) Such covenant defeasance shall not cause the Trustee to have a conflicting
interest for purposes of the Trust Indenture Act of 1939 with respect to any securities of
the Issuer.




     (iv) Such covenant defeasance shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument to which the
Issuer is a party or by which it is bound.




     (v) Such covenant defeasance shall not cause any Securities then listed on any
registered national securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.




     (vi) No event or condition shall exist that, pursuant to the provisions of
Section 13.01, would prevent the Issuer from making payments of the principal of or interest
on the Securities of such series and Coupons appertaining thereto on the date of such
deposit or at any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied until the
expiration of such period).




     (vii) The Issuer shall have delivered to the Trustee an Officer’s Certificate and
Opinion of Counsel to the effect that the Holders of the Securities of such series and
Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.




     (viii) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.




     (ix) The Issuer has delivered to the Trustee an Opinion of Counsel to the effect that
(x) the trust funds will not be subject to any rights of holders of Senior Indebtedness,
including without limitation those arising under Article 13 of this Indenture, and (y) after
the 91st day following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, except that if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Issuer, no opinion is given as to
the effect of such laws on the trust funds except the following: (A) assuming such trust
funds remained in the Trustee’s possession prior to such court ruling to the extent not paid
to Holders of Securities of such series and Coupons appertaining thereto, the Trustee will
hold, for the benefit of such Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, (B) such Holders will be entitled to
receive adequate protection of their interests in such trust funds if such trust funds are
used, and (C) no property, rights in property or other interests granted to the Trustee or
such Holders in exchange for or with respect to any of such funds will be subject to any
prior rights of holders of Senior Indebtedness, including without limitation those arising
under Article 13 of this Indenture.



     Section 10.02 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or other trustee)
pursuant to Section 10.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Issuer acting as its own paying agent), to the Holders
of the particular Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such money need not be segregated from other funds
except to the extent required by law.



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     Section 10.03 Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys
then held by any paying agent under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to such moneys.



     Section 10.04 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of
the principal of or interest on any Security of any series or Coupons attached thereto and not
applied but remaining unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of
the Securities of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be entitled to collect,
and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being required to make any
such repayment with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by first-class mail
to Holders of such Securities at their addresses as they shall appear on the Security register, and
(b) in respect of Unregistered Securities of any series, shall at the expense of the Issuer either
give through the customary notice provisions of the clearing system or systems through which
beneficial interests in such Unregistered Securities are owned if such Unregistered Securities are
held only in global form or cause to be published once, in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and once in an Authorized Newspaper in London, notice, that
such moneys remain and that, after a date specified therein, which shall not be less than thirty
days from the date of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.



     Section 10.05 Indemnity for U.S. Government Obligations. The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 10.01 or the principal or interest received in
respect of such obligations.



ARTICLE 11

MISCELLANEOUS PROVISIONS




     Section 11.01 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly or through the
Issuer or any successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities and the Coupons
appertaining thereto by the Holders thereof and as part of the consideration for the issue of the
Securities and the Coupons appertaining thereto.



     Section 11.02 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities and Coupons. Nothing in this Indenture, in the Securities or in the Coupons
appertaining thereto, expressed or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and their successors and the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and their successors, the
holders of the Senior Indebtedness and the Holders of the Securities or Coupons, if any.



     Section 11.03 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the
Issuer shall bind its successors and assigns, whether so expressed or not.



     Section 11.04 Notices and Demands on Issuer, Trustee and Holders of Securities and
Coupons. Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the



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Trustee or by the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to
Piper Jaffray Companies, 800 Nicollet Mall, Suite 800, Mail Stop J09N05, Minneapolis, MN 55402,
Attention: Secretary. Any notice, direction, request or demand by the Issuer or any Holder of
Securities or Coupons to or upon the Trustee shall be deemed to have been sufficiently given or
served by being deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Trustee is filed by the Trustee with the
Issuer) to [•].




     Where this Indenture provides for notice to Holders of Registered Securities, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in
the Security register. In any case where notice to such 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. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such waiver.



     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.



     Section 11.05 Officer’s Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Issuer to the Trustee to take any action under
any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



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



     Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous. Any certificate, statement or
opinion of counsel may be based, insofar as it relates to factual matters, information with respect
to which is in the possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.



     Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion



37









 







may be based as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.




     Any certificate or opinion of any independent firm of public accountants filed with and
directed to the Trustee shall contain a statement that such firm is independent.



     Section 11.06 Payments Due on Saturdays, Sundays or Holidays. If the date of
maturity of interest on or principal of the Securities of any series or any Coupons appertaining
thereto or the date fixed for redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the period after such
date.



     Section 11.07 Conflict of Any Provision of Indenture with Trust Indenture Act of
1939. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or with another provision (an “incorporated provision”) included in
this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939,
such imposed duties or incorporated provision shall control.



     Section 11.08 New York Law to Govern. This Indenture and each Security and Coupon
shall be deemed to be a contract under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such State, except as may otherwise be required
by mandatory provisions of law.



     Section 11.09 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.



     Section 11.10 Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.



     Section 11.11 Securities in a Foreign Currency. Unless otherwise specified in an
Officer’s Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all series or
all series affected by a particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any series which are denominated in a coin or currency other than
Dollars, then the principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this Section 11.11, Market
Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York. 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 as of the most recent available date, 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, or such other quotations as the
Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated in a currency other
than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of
this Indenture.



     All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.



     Section 11.12 Judgment Currency. The Issuer agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of or interest on the
Securities of any series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless



38









 







such day is not a New York Banking Day, then, to the extent permitted by applicable law, the
rate of exchange used shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the New York Banking Day preceding the day on which a final unappealable judgment is entered and
(b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture. For purposes of
the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The City of New York are authorized
or required by law or executive order to close.




ARTICLE 12

REDEMPTION OF SECURITIES AND SINKING FUNDS




     Section 12.01 Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.



     Section 12.02 Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Registered Securities of any series to be redeemed as a whole or in part at the option
of the Issuer shall be given by mailing notice of such redemption by first-class mail, postage
prepaid, to such Holders of Securities of such series at their last addresses as they shall appear
upon the registry books at least 30 days and not more than 60 days prior to the date fixed for
redemption, or within such other redemption notice period as has been designated for any Securities
of such series pursuant to Section 2.03 or 2.04 (the “Redemption Notice Period”). Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a whole or in part, who have
filed their names and addresses with the Trustee within two years preceding such notice of
redemption, shall be given by mailing notice of such redemption, by first-class mail, postage
prepaid, at least 30 and not more than 60 days prior to the date fixed for redemption or within any
applicable Redemption Notice Period to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee shall make such
information available to the Issuer for such purpose). Notice of redemption to all other Holders
of Unregistered Securities shall be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and in an Authorized Newspaper in London, in each case, once in
each of three successive calendar weeks, the first publication to be not less than 30 nor more than
60 days prior to the date fixed for redemption or within any applicable Redemption Notice Period;
provided that notice to Holders of Unregistered Securities held only in global form may be made, at
the option of the Issuer, through the customary notice provisions of the clearing system or systems
through which beneficial interests in such Unregistered Securities are owned. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any other Security of
such series.



     The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for redemption, the
redemption price (or if not then ascertainable, the manner of calculation thereof), the place or
places of payment, that payment will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.



39









 





     The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at
the expense of the Issuer.



     On or before the redemption date specified in the notice of redemption given as provided in
this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if
the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.04) an amount of money or other property sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer will deliver to the
Trustee at least 70 days prior to the date fixed for redemption or at least 10 days prior to the
first day of any applicable Redemption Notice Period an Officer’s Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section,
an Officer’s Certificate stating that such restriction has been complied with.



     If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.



     Section 12.03 Payment of Securities Called for Redemption. If notice of redemption
has been given as above provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 6.05 and 10.04, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining thereto maturing after
the date fixed for redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon
to the date fixed for redemption; provided that payment of interest becoming due on or prior to the
date fixed for redemption shall be payable in the case of Securities with Coupons attached thereto,
to the Holders of the Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered as such on the
relevant record date subject to the terms and provisions of Sections 2.03 and 2.07 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.



     If any Security with Coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender
of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.



     Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.



40









 





     Section 12.04 Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer.



     Section 12.05 Mandatory and Optional Sinking Funds. The minimum amount of any
sinking fund payment provided for by the terms of the 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 the Securities of any series is herein referred to as an “optional sinking fund
payment”. The date on which a sinking fund payment is to be made is herein referred to as the
“sinking fund payment date”.



     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such
series. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.



     On or before the 60th day next preceding each sinking fund payment date or the 30th day next
preceding the last day of any applicable Redemption Notice Period relating to a sinking fund
payment date for any series, the Issuer will deliver to the Trustee an Officer’s Certificate (which
need not contain the statements required by Section 11.05) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied
by credit of Securities of such series and the basis for such credit, (b) stating that none of the
Securities of such series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Defaults or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer
intends to exercise its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to
pay on or before the next succeeding sinking fund payment date. Any Securities of such series to
be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to
credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officer’s Certificate
(or reasonably promptly thereafter if acceptable to the Trustee). Such Officer’s Certificate shall
be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day
or 30th day, if applicable, to deliver such Officer’s Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will
make no optional sinking fund payment with respect to such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so
request with respect to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed for redemption. If
such amount shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and the
Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the manner
provided in Section 12.02, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial



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numbers of the Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officer’s Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date or at least 30 days prior to the last day of any
applicable Redemption Notice Period relating to a sinking fund payment date as being owned of
record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such Officer’s Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer. The Trustee, in the
name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.02 (and with the effect provided in Section 12.03)
for the redemption of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.




     On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or
shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Default except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Default, be deemed to have been collected under Article 5 and held
for the payment of all such Securities. In case such Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such Securities.



ARTICLE 13

SUBORDINATION




     Section 13.01 Securities and Coupons Subordinated to Senior Indebtedness. The Issuer
covenants and agrees, and each Holder of a Security or Coupon, by his acceptance thereof, likewise
covenants and agrees, that the indebtedness represented by the Securities and any Coupons and the
payment of the principal of and interest on each and all of the Securities and of any Coupons 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 Senior Indebtedness.



     In the event (a) of any insolvency or bankruptcy proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of the Issuer or a substantial part of its
property, or of any proceedings for liquidation, dissolution or other winding up of the Issuer,
whether or not involving insolvency or bankruptcy, or (b) subject to the provisions of Section
13.02 that (i) a default shall have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable on any Senior Indebtedness, or (ii) there
shall have occurred an event of default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of any Senior Indebtedness, as
defined therein or in the instrument under which the same is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof (with notice or lapse of time, or both), and
such event of default shall have continued beyond the period of grace, if any, in respect thereof,
and, in the cases of subclauses (i) and (ii) of this clause (b), such default or event of default
shall not have been cured or waived or shall not have ceased to exist, or (c) that the principal of
and accrued interest on the Securities of any series shall have been declared due and payable
pursuant to Section 5.01 and such declaration shall not have been rescinded and annulled as
provided in Section 5.01 then:



42









 






     (i) the holders of all Senior Indebtedness shall first be entitled to receive payment
of the full amount due thereon, or provision shall be made for such payment in money or
money’s worth, before the Holders of any of the Securities or Coupons are entitled to
receive a payment on account of the principal of or interest on the indebtedness evidenced
by the Securities or of the Coupons, including, without limitation, any payments made
pursuant to Article 12;




     (ii) any payment by, or distribution of assets of, the Issuer of any kind or character,
whether in cash, property or securities, to which the Holders of any of the Securities or
Coupons or the Trustee would be entitled except for the provisions of this Article shall be
paid or delivered by the Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such
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 such Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made to the holders of the indebtedness
evidenced by the Securities or Coupons or to the Trustee under this instrument; and




     (iii) in the event that, notwithstanding the foregoing, any payment by, or distribution
of assets of, the Issuer of any kind or character, whether in cash, property or securities,
in respect of principal of or interest on the Securities or in connection with any
repurchase by the Issuer of the Securities, shall be received by the Trustee or the Holders
of any of the Securities or Coupons before all Senior Indebtedness is paid in full, or
provision made for such payment in money or money’s worth, such payment or distribution in
respect of principal of or interest on the Securities or in connection with any repurchase
by the Issuer of the Securities shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the 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 (or provision therefor) to the
holders of such Senior Indebtedness.




     Notwithstanding the foregoing, at any time after the 91st day following the date of deposit of
cash or, in the case of Securities payable only in Dollars, U.S. Government Obligations pursuant to
Section 10.01(b) or 10.01(c) (provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be subject to any rights of
holders of Senior Indebtedness including, without limitation, those arising under this Article 13.



     Section 13.02 Disputes with Holders of Certain Senior Indebtedness. Any failure by
the Issuer to make any payment on or perform any other obligation under Senior Indebtedness, other
than any indebtedness incurred by the Issuer or assumed or guaranteed, directly or indirectly, by
the Issuer for money borrowed (or any deferral, renewal, extension or refunding thereof) or any
indebtedness or obligation as to which the provisions of this Section shall have been waived by the
Issuer in the instrument or instruments by which the Issuer incurred, assumed, guaranteed or
otherwise created such indebtedness or obligation, shall not be deemed a default or event of
default under Section 13.01(b) if (a) the Issuer shall be disputing its obligation to make such
payment or perform such obligation and (b) either (i) no final judgment relating to such dispute
shall have been issued against the Issuer which is in full force and effect and is not subject to
further review, including a judgment that has become final by reason of the expiration of the time
within which a party may seek further appeal or review, and (ii) in the event of a judgment that is
subject to further review or appeal has been issued, the Issuer shall in good faith be prosecuting
an appeal or other proceeding for review and a stay of execution shall have been obtained pending
such appeal or review.



     Section 13.03 Subrogation. Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities and any Coupons shall be subrogated (equally and
ratably with the holders of all obligations of the Issuer which by their express terms are
subordinated to Senior Indebtedness of the Issuer to the same extent as the Securities are
subordinated and which are entitled to like rights of subrogation) to the rights of the holders of
Senior



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Indebtedness to receive payments or distributions of cash, property or securities of the
Issuer applicable to the Senior Indebtedness until all amounts owing on the Securities and any
Coupons shall be paid in full, and as between the Issuer, its creditors other than holders of such
Senior Indebtedness and the Holders, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of this Article that otherwise would have been made to the Holders shall be
deemed to be a payment by the Issuer on account of such Senior Indebtedness, it being understood
that the provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand.




     Section 13.04 Obligation of Issuer Unconditional. Nothing contained in this Article
or elsewhere in this Indenture or in the Securities or any Coupons is intended to or shall impair,
as among the Issuer, its creditors other than the holders of Senior Indebtedness and the Holders,
the obligation of the Issuer, which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities and the amounts owed pursuant to any Coupons as and
when the same shall become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Issuer other than the holders
of Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect
of cash, property or securities of the Issuer received upon the exercise of any such remedy.



     Upon payment or distribution of assets of the Issuer referred to in this Article, the Trustee
and the Holders shall be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Issuer is pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, liquidating trustee or agent or other Person
making any payment or distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount paid or distributed thereon and all other facts pertinent thereto or to this
Article.



     Section 13.05 Payments on Securities and Coupons Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities or Coupons shall affect the
obligations of the Issuer to make, or prevent the Issuer from making, payment of the principal of
or interest on the Securities and of any Coupons in accordance with the provisions hereof and
thereof, except as otherwise provided in this Article.



     Section 13.06 Effectuation of Subordination by Trustee. Each holder of Securities or
Coupons, 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 provided in this Article
and appoints the Trustee his attorney-in-fact for any and all such purposes.



     Section 13.07 Knowledge of Trustee. Notwithstanding the provisions of this Article
or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of moneys to or by the
Trustee, or the taking of any other action by the Trustee, unless and until the Trustee shall have
received written notice thereof mailed or delivered to the Trustee at its Corporate Trust Office
from the Issuer, any Holder, any paying agent or the holder or representative of any class of
Senior Indebtedness; provided that if at least three 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 the principal or interest on any Security or interest on any Coupon) the Trustee
shall not have received with respect to such moneys the notice provided for in this Section, 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 that may be received by it within three
Business Days prior to or on or after such date.



     Section 13.08 Trustee May Hold Senior Indebtedness. The Trustee shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness at the time held
by it, to the same extent as any other holder of Senior Indebtedness, and nothing in Section 6.03
or elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder.



44









 





     Section 13.09 Rights of Holders of Senior Indebtedness Not Impaired. No right of any
present or future holder of any Senior Indebtedness to enforce the subordination herein shall at
any time or in any way be prejudiced or impaired by any act or failure to act on the part of the
Issuer or by any noncompliance by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged
with.



     With respect to the holders of Senior Indebtedness, (a) the duties and obligations of the
Trustee shall be determined solely by the express provisions of this Indenture, (b) the Trustee
shall not be liable except for the performance of such duties and obligations as are specifically
set forth in this Indenture, (c) no implied covenants or obligations shall be read into this
Indenture against the Trustee and (d) the Trustee shall not be deemed to be a fiduciary as to such
holders.



     Section 13.10 Article Applicable to Paying Agents. In case at any time any paying
agent other than the Trustee shall have been appointed by the Issuer and be then acting hereunder,
the term “Trustee” as used in this Article shall in such case (unless the context shall require
otherwise) be construed as extending to and including such paying agent within its meaning as fully
for all intents and purposes as if such paying agent were named in this Article in addition to or
in place of the Trustee, provided, however, that Sections 13.07 and 13.08 shall not apply to the
Issuer if it acts as its own paying agent.



     Section 13.11 Trustee; Compensation Not Prejudiced. Nothing in this Article shall
apply to claims of, or payments to, the Trustee pursuant to Section 6.06.



     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of [•].



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	PIPER JAFFRAY COMPANIES	 	 
	[CORPORATE SEAL]	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	Title:

	 	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	[•],	 	 
	 

	 	 	 	 	 	TRUSTEE	 	 
	[CORPORATE SEAL]	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	Title:	 	 
	Attest:	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 







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