cdxc_ex410





 Exhibit
4.10






 


 

 


 

 


 

 


 

 



CHROMADEX CORPORATION,

 



Issuer

 


 

 



AND

 


 

 



[TRUSTEE],

 



Trustee

 



_______________

 



INDENTURE

 


 

 



Dated as of [●], 20__

 



_______________

 



Debt Securities


 



 







 






 



Table of
Contents


 


	

 

	

 

	

Page


	

ARTICLE
1 DEFINITIONS

	

1


	

Section
1.01

	

Definitions of
Terms

	

1


	

ARTICLE
2 ISSUE, DESCRIPTION,
TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF
SECURITIES

	

5


	

Section
2.01

	

Designation and
Terms of Securities

	

5


	

Section
2.02

	

Form of
Securities and Trustee’s Certificate

	

8


	

Section
2.03

	

Denominations:
Provisions for Payment

	

8


	

Section
2.04

	

Execution and
Authentications

	

9


	

Section
2.05

	

Registration of
Transfer and Exchange

	

10


	

Section
2.06

	

Temporary
Securities

	

11


	

Section
2.07

	

Mutilated,
Destroyed, Lost or Stolen Securities

	

12


	

Section
2.08

	

Cancellation

	

13


	

Section
2.09

	

Benefits of
Indenture

	

13


	

Section
2.10

	

Authenticating
Agent

	

13


	

Section
2.11

	

Global
Securities

	

14


	

Section
2.12

	

CUSIP
Numbers

	

15


	

ARTICLE
3 REDEMPTION OF
SECURITIES AND SINKING FUND PROVISIONS

	

15


	

Section
3.01

	

Redemption

	

15


	

Section
3.02

	

Notice
of Redemption

	

15


	

Section
3.03

	

Payment
Upon Redemption

	

16


	

Section
3.04

	

Sinking
Fund

	

17


	

Section
3.05

	

Satisfaction of
Sinking Fund Payments with Securities

	

17


	

Section
3.06

	

Redemption of
Securities for Sinking Fund

	

17


	

ARTICLE
4 COVENANTS

	

18


	

Section
4.01

	

Payment
of Principal, Premium and Interest

	

18


	

Section
4.02

	

Maintenance of
Office or Agency

	

18


	

Section
4.03

	

Paying
Agents

	

19


	

Section
4.04

	

Appointment to Fill
Vacancy in Office of Trustee

	

20


	

ARTICLE
5 SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

	

20


	

Section
5.01

	

Company
to Furnish Trustee Names and Addresses of
Securityholders

	

20


	

Section
5.02

	

Preservation Of
Information; Communications With Securityholders

	

20


	

Section
5.03

	

Reports
by the Company

	

20


	

Section
5.04

	

Reports
by the Trustee

	

21


	

ARTICLE
6 REMEDIES OF THE
TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

	

21


	

Section
6.01

	

Events
of Default

	

21


	

Section
6.02

	

Collection of
Indebtedness and Suits for Enforcement by Trustee

	

23


	

Section
6.03

	

Application of
Moneys Collected

	

25


	

Section
6.04

	

Limitation on
Suits

	

25


	

Section
6.05

	

Rights
and Remedies Cumulative; Delay or Omission Not Waiver

	

26


	

Section
6.06

	

Control
by Securityholders

	

26


	

Section
6.07

	

Undertaking to Pay
Costs

	

27






 



 

i







 





 

Table of
Contents

(continued)


 

 


	

ARTICLE
7 CONCERNING THE
TRUSTEE

	

27


	

Section
7.01

	

Certain
Duties and Responsibilities of Trustee

	

27


	

Section
7.02

	

Certain
Rights of Trustee

	

28


	

Section
7.03

	

Trustee
Not Responsible for Recitals or Issuance or Securities

	

30


	

Section
7.04

	

May
Hold Securities

	

30


	

Section
7.05

	

Moneys
Held in Trust

	

30


	

Section
7.06

	

Compensation and
Reimbursement

	

31


	

Section
7.07

	

Reliance on
Officer’s Certificate

	

31


	

Section
7.08

	

Disqualification;
Conflicting Interests

	

32


	

Section
7.09

	

Corporate Trustee
Required; Eligibility

	

32


	

Section
7.10

	

Resignation and
Removal; Appointment of Successor

	

32


	

Section
7.11

	

Acceptance of
Appointment By Successor

	

33


	

Section
7.12

	

Merger,
Conversion, Consolidation or Succession to Business

	

35


	

Section
7.13

	

Preferential
Collection of Claims Against the Company

	

35


	

Section
7.14

	

Notice
of Default.

	

35


	

ARTICLE
8 CONCERNING THE
SECURITYHOLDERS

	

35


	

Section
8.01

	

Evidence of Action
by Securityholders

	

35


	

Section
8.02

	

Proof
of Execution by Securityholders

	

36


	

Section
8.03

	

Who May
be Deemed Owners

	

36


	

Section
8.04

	

Certain
Securities Owned by Company Disregarded

	

37


	

Section
8.05

	

Actions
Binding on Future Securityholders

	

37


	

ARTICLE
9 SUPPLEMENTAL
INDENTURES

	

37


	

Section
9.01

	

Supplemental
Indentures Without the Consent of Securityholders

	

37


	

Section
9.02

	

Supplemental
Indentures With Consent of Securityholders

	

39


	

Section
9.03

	

Effect
of Supplemental Indentures

	

39


	

Section
9.04

	

Securities Affected
by Supplemental Indentures

	

39


	

Section
9.05

	

Execution of
Supplemental Indentures

	

40


	

ARTICLE
10 SUCCESSOR
ENTITY

	

40


	

Section
10.01

	

Company
May Consolidate, Etc.

	

40


	

Section
10.02

	

Successor Entity
Substituted

	

41


	

ARTICLE
11 SATISFACTION AND
DISCHARGE

	

41


	

Section
11.01

	

Satisfaction and
Discharge of Indenture

	

41


	

Section
11.02

	

Discharge of
Obligations

	

42


	

Section
11.03

	

Deposited Moneys to
be Held in Trust

	

42


	

Section
11.04

	

Payment
of Moneys Held by Paying Agents

	

42


	

Section
11.05

	

Repayment to
Company

	

42


	

ARTICLE
12 IMMUNITY OF
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

	

43


	

Section
12.01

	

No
Recourse

	

43






 



 

ii







 





 


Table of
Contents

(continued)

  




	

ARTICLE
13 MISCELLANEOUS
PROVISIONS

	

43


	

Section
13.01

	

Effect
on Successors and Assigns

	

43


	

Section
13.02

	

Actions
by Successor

	

43


	

Section
13.03

	

Surrender of
Company Powers

	

44


	

Section
13.04

	

Notices

	

44


	

Section
13.05

	

Governing Law; Jury
Trial Waiver

	

44


	

Section
13.06

	

Treatment of
Securities as Debt

	

44


	

Section
13.07

	

Certificates and
Opinions as to Conditions Precedent

	

44


	

Section
13.08

	

Payments on
Business Days

	

45


	

Section
13.09

	

Conflict with Trust
Indenture Act

	

45


	

Section
13.10

	

Counterparts

	

45


	

Section
13.11

	

Separability

	

45


	

Section
13.12

	

Compliance
Certificates

	

45


	

Section
13.13

	

Patriot
Act

	

45


	

Section
13.14

	

Force
Majeure

	

45


	

Section
13.12

	

Table
of Contents; Headings

	

45






 




 

iii








 










 



INDENTURE

 


Indenture,
dated as of [●], 20__, among ChromaDex
Corporation, a
Delaware corporation (the “Company”), and [Trustee], as
trustee (the “Trustee”):

 


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

 


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

 


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

 


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

 

ARTICLE
1


 



DEFINITIONS

 

Section
..01 Definitions of Terms.

 


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

 


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

 


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

 


“Board of
Directors” means the Board of Directors (or the
functional equivalent thereof) of the Company or any duly
authorized committee of such Board.

 


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

 


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

 


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

 


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

 


“Corporate Trust
Office” means the office of the Trustee at which, at
any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is
located at 10900 Wilshire Blvd., Suite 650, Los Angeles, CA
90024.

 


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

 



 

1







 





 


“Defaulted
Interest” has the meaning set forth in Section
2.03.

 


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

 


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

 


“Exchange Act”
means the United States Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the
Commission thereunder.

 


The
term “given”,
“mailed”,
“notify” or
“sent” with
respect to any notice to be given to a Securityholder pursuant to
this Indenture, shall mean notice (x) given to the Depositary (or
its designee) pursuant to the standing instructions from the
Depositary or its designee, including by electronic mail in
accordance with accepted practices or procedures at the Depositary
(in the case of a Global Security) or (y) mailed to such Holder by
first class mail, postage prepaid, at its address as it appears on
the Security Register (in the case of a definitive Security).
Notice so “given” shall be deemed to include any notice
to be “mailed” or “delivered,” as
applicable, under this Indenture.

 


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

 


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

 


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

 


“Indenture”
means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms
hereof and shall include the terms of particular series of
Securities established as contemplated by Section
2.01.

 


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

 


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

 


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

 


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

 



 

2







 





 


“Outstanding”,
when used with reference to Securities of any series, means,
subject to the provisions of Section 8.04, as of any particular
time, all Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a)
Securities theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as provided in
Article Three, or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07.

 


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

 


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

 


“Responsible
Officer” when used with respect to the Trustee means
any officer within the Corporate Trust Office of the Trustee (or
any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject and in each case who
shall have direct responsibility for the administration of this
Indenture.

 


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

 


“Securities
Act” means the Securities Act of 1933, as
amended.

 


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

 


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

 


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


 


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

 


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

 


“U.S.A. Patriot
Act” means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into
law October 26, 2001.

 



 

3







 





 



ARTICLE 2

 



ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES

 

Section
..01 Designation and Terms of
Securities.

 

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

 

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

 

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

 

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

 

(4) the form of the
Securities of the series including the form of the certificate of
authentication for such series;

 

(5) the applicability
of any guarantees;

 

(6) whether or not the
Securities will be secured or unsecured, and the terms of any
secured debt;

 

(7) whether the
Securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination;

 

(8) if the price
(expressed as a percentage of the aggregate principal amount
thereof) at which such Securities will be issued is a price other
than the principal amount thereof, the portion of the principal
amount thereof payable upon declaration of acceleration of the
maturity thereof, or if applicable, the portion of the principal
amount of such Securities that is convertible into another security
or the method by which any such portion shall be
determined;

 

(9) the interest rate
or rates, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for
interest payment dates or the method for determining such
dates;

 

(10) the Company’s
right, if any, to defer the payment of interest and the maximum
length of any such deferral period;

 

(11) if applicable, the
date or dates after which, or the period or periods during which,
and the price or prices at which, the Company may at its option,
redeem the series of Securities pursuant to any optional or
provisional redemption provisions and the terms of those redemption
provisions;

 

(12) the date or dates,
if any, on which, and the price or prices at which the Company is
obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the
Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are
payable;

 

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

 

(14) any and all terms,
if applicable, relating to any auction or remarketing of the
Securities of that series and any security for the obligations of
the Company with respect to such Securities and any other terms
which may be advisable in connection with the marketing of
Securities of that series;

 



 

4







 





 

(15) whether the
Securities of the series shall be issued in whole or in part in the
form of a Global Security or Securities; the terms and conditions,
if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and
the Depositary for such Global Security or Securities;

 

(16) if applicable, the
provisions relating to conversion or exchange of any Securities of
the series and the terms and conditions upon which such Securities
will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may
be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange
features, the applicable conversion or exchange period and the
manner of settlement for any conversion or exchange, which may,
without limitation, include the payment of cash as well as the
delivery of securities;

 

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

 

(18) additions to or
changes in the covenants applicable to the series of Securities
being issued, including, among others, the consolidation, merger or
sale covenant;

 

(19) additions to or
changes in the Events of Default with respect to the Securities and
any change in the right of the Trustee or the Securityholders to
declare the principal, premium, if any, and interest, if any, with
respect to such Securities to be due and payable;

 

(20) additions to or
changes in or deletions of the provisions relating to covenant
defeasance and legal defeasance;

 

(21) additions to or
changes in the provisions relating to satisfaction and discharge of
this Indenture;

 

(22) additions to or
changes in the provisions relating to the modification of this
Indenture both with and without the consent of Securityholders of
Securities issued under this Indenture;

 

(23) the currency of
payment of Securities if other than U.S. dollars and the manner of
determining the equivalent amount in U.S. dollars;

 

(24) whether interest
will be payable in cash or additional Securities at the
Company’s or the Securityholders’ option and the terms
and conditions upon which the election may be made;

 

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

 

(26) any restrictions on
transfer, sale or assignment of the Securities of the
series; and

 

(27) any other specific
terms, preferences, rights or limitations of, or restrictions on,
the Securities, any other additions or changes in the provisions of
this Indenture, and any terms that may be required by us or
advisable under applicable laws or regulations.

 


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

 


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

 


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

 

Section
..02 Form of Securities and Trustee’s
Certificate.

 


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

 



 

5







 





 

Section
..03 Denominations: Provisions for
Payment.

 


The
Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of
a particular series shall bear interest payable on the dates and at
the rate specified with respect to that series. Subject to Section
2.01(a)(23), the principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption or
repurchase thereof prior to maturity, and any cash amount due upon
conversion or exchange thereof, shall be payable in the coin or
currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the
Company maintained for that purpose. Each Security shall be dated
the date of its authentication. Interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day
months.

 


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

 


Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or
clause (2) below:

 

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

 

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

 


Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular
record date” as used in this Section with respect to a series
of Securities and any Interest Payment Date for such series shall
mean either the fifteenth day of the month immediately preceding
the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the first day
of the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the fifteenth day of a month, whether or
not such date is a Business Day.

 


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

 

Section
..04 Execution and
Authentications.

 


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

 


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

 


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

 



 

6







 





 


Upon
the Company’s delivery of any such authentication order to
the Trustee at any time after the initial issuance of Securities
under this Indenture, the Trustee shall be provided with, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, (1) an Opinion of
Counsel or reliance letter and (2) an Officer’s Certificate
stating that all conditions precedent to the execution,
authentication and delivery of such Securities are in conformity
with the provisions of this Indenture.

 


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

 

Section
..05 Registration of Transfer and
Exchange.

 

(a) Securities of any
series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose, for other
Securities of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Security or Securities of the same series
that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously
outstanding.

 

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

 


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

 


The
Company initially appoints the Trustee as initial Security
Registrar for each series of Securities

 


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

 

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

 

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

 


The
Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers
between or among Depositary participants or beneficial owners of
interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required
by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express
requirements hereof.

 

Section
..06 Temporary Securities.

 


Pending
the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of
which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every temporary Security of any
series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in
exchange therefor (without charge to the Securityholders), at the
office or agency of the Company designated for the purpose, and the
Trustee shall authenticate and such office or agency shall deliver
in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice
from the Company. Until so exchanged, the temporary Securities of
such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and
delivered hereunder.

 



 

7







 





 

Section
..07 Mutilated, Destroyed, Lost or Stolen
Securities.

 


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

 


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

 


Every
replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same
series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.

 

Section
..08 Cancellation.

 


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

 

Section
..09 Benefits of Indenture.

 


Nothing
in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the
Securities.

 

Section
..10 Authenticating Agent.

 


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

 


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

 



 

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Section
..11 Global Securities.

 

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

 

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

 

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

 

Section
..12 CUSIP Numbers.

 


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

 



 

9







 






 



ARTICLE 3

 



REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

 

Section
..01 Redemption.

 


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

 

Section
..02 Notice of Redemption.

 

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

 


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

 


In case
any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after
the redemption date, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to
the unredeemed portion thereof will be issued.

 

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

 

Section
..03 Payment Upon Redemption.

 

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

 

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

 



 

10







 





 

Section
..04 Sinking Fund.

 


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

 


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

 

Section
..05 Satisfaction of Sinking Fund Payments with
Securities.

 


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

 

Section
..06 Redemption of Securities for Sinking
Fund.

 


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

 



 

11







 





 



ARTICLE 4

 



COVENANTS

 

Section
..01 Payment of Principal, Premium and
Interest.

 


The
Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities
of that series at the time and place and in the manner provided
herein and established with respect to such Securities. Payments of
principal on the Securities may be made at the time provided herein
and established with respect to such Securities by U.S. dollar
check drawn on and mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account if
such Securityholder shall have furnished wire instructions to the
Trustee no later than 15 days prior to the relevant payment date.
Payments of interest on the Securities may be made at the time
provided herein and established with respect to such Securities by
U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account if
such Securityholder shall have furnished wire instructions in
writing to the Security Registrar and the Trustee no later than 15
days prior to the relevant payment date.

 

Section
..02 Maintenance of Office or
Agency.

 


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

 

Section
..03 Paying Agents.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section
..04 Appointment to Fill Vacancy in Office of
Trustee.

 


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

 



 

12







 





 



ARTICLE 5

 



SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE

 

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

 


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

 

Section
..02 Preservation Of Information; Communications
With Securityholders.

 

(a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of
holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity).

 

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

 

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

 

Section
..03 Reports by the Company.

 

(a) The Company will at
all times comply with Section 314(a) of the Trust Indenture Act.
The Company covenants and agrees to provide (which delivery may be
via electronic mail) to the Trustee within 30 days, after the
Company files the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the
Company is required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; provided, however, the
Company shall not be required to deliver to the Trustee any
correspondence filed with the Commission or any materials for which
the Company has sought and received confidential treatment by the
Commission; and provided further, that so long as such filings by
the Company are available on the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), or any successor
system, such filings shall be deemed to have been filed with the
Trustee for purposes hereof without any further action required by
the Company. For the avoidance of doubt, a failure by the Company
to file annual reports, information and other reports with the
Commission within the time period prescribed thereof by the
Commission shall not be deemed a breach of this Section
5.03.

 

(b) Delivery of
reports, information and documents to the Trustee under Section
5.03 is for informational purposes only and the information and the
Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein, or
determinable from information contained therein including the
Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an
Officer’s Certificate). The Trustee is under no duty to
examine any such reports, information or documents delivered to the
Trustee or filed with the Commission via EDGAR to ensure compliance
with the provision of this Indenture or to ascertain the
correctness or otherwise of the information or the statements
contained therein. The Trustee shall have no responsibility or duty
whatsoever to ascertain or determine whether the above referenced
filings with the Commission on EDGAR (or any successor system) has
occurred.

 

Section
..04 Reports by the Trustee.

 

(a) If required by
Section 313(a) of the Trust Indenture Act, the Trustee, within
sixty (60) days after each May 1, shall send to the Securityholders
a brief report dated as of such May 1, which complies with Section
313(a) of the Trust Indenture Act.

 

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

 

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

 



 

13







 





 



ARTICLE 6

 



REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT

 

Section
..01 Events of Default.

 

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

 

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

 

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

 

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

 

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

 

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

 

(b) In each and every
such case (other than an Event of Default specified in clause (4)
or clause (5) above), unless the principal of all the Securities of
that series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder,
by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium,
if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable. If an Event of Default specified in clause (4) or clause
(5) above occurs, the principal of and accrued and unpaid interest
on all the Securities of that series shall automatically be
immediately due and payable without any declaration or other act on
the part of the Trustee or the holders of the
Securities.

 

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

 


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

 

(d) In case the Trustee
shall have proceeded to enforce any right with respect to
Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case,
subject to any determination in such proceedings, the Company and
the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such
proceedings had been taken.

 



 

14







 





 

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

 

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

 

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

 

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

 

(d) All rights of
action and of asserting claims under this Indenture, or under any
of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of
such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the
Securities of such series.

 


In case
of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by
law.

 


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

 

Section
..03 Application of Moneys
Collected.

 


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

 


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

 


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

 


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

 



 

15







 





 

Section
..04 Limitation on Suits.

 


No
holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless (i) such
Securityholder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such
series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder; (iii) such Securityholder or
Securityholders shall have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request; (iv) the Trustee for
90 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 90 day period, the holders of a
majority in principal amount of the Securities of that series do
not give the Trustee a direction inconsistent with the
request.

 


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

 

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

 

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

 

(b) No delay or
omission of the Trustee or of any holder of any of the Securities
to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default
or an acquiescence therein; and, subject to the provisions of
Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from
time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.

 

Section
..06 Control by
Securityholders.

 


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

 

Section
..07 Undertaking to Pay Costs.

 


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

 



 

16







 





                            






ARTICLE 7

 



CONCERNING THE TRUSTEE

 

Section
..01 Certain Duties and Responsibilities of
Trustee.

 

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

 

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

 

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

 

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

 

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

 

(ii) the Trustee shall
not be liable to any Securityholder or to any other Person 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;

 

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

 

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

 

(v) The Trustee shall
not be required to give any bond or surety in respect of the
performance of its powers or duties hereunder;

 

(vi) The permissive
right of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty of the Trustee; and

 

(vii) No Trustee shall
have any duty or responsibility for any act or omission of any
other Trustee appointed with respect to a series of Securities
hereunder.

 

Section
..02 Certain Rights of Trustee.

 


Except
as otherwise provided in Section 7.01:

 

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

 



 

17







 





 

(b) Any request,
direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized Officer of the
Company (unless other evidence in respect thereof is specifically
prescribed herein);

 

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

 

(d) The Trustee shall
be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the
Trustee security or indemnity reasonably acceptable to the Trustee
against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Securities (that
has not been cured or waived), to exercise with respect to
Securities of that series such of the rights and powers vested in
it by this Indenture, and to use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his or her own
affairs;

 

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

 

(f) The Trustee shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond,
security, or other papers or documents or inquire as to the
performance by the Company of one of its covenants under this
Indenture, unless requested in writing so to do by the holders of
not less than a majority in principal amount of the Outstanding
Securities of the particular series affected thereby (determined as
provided in Section 8.04); provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require security or indemnity
reasonably acceptable to the Trustee against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or,
if paid by the Trustee, shall be repaid by the Company upon
demand;

 

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

 

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

 

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

 

(j) The Trustee agrees
to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other
similar unsecured electronic methods; provided, however, that such
instructions or directions shall be signed by an authorized
representative of the party providing such instructions or
directions. If the party elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such
instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be
liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The
party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third
parties. The Trustee may request that the Company deliver an
Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to furnish the
Trustee with Officer’s Certificates, Company Orders and any
other matters or directions pursuant to this
Indenture.

 

(k) The rights,
privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder and under the
Securities, and each agent, custodian or other person employed to
act under this Indenture.

 

(l) The Trustee shall
not be deemed to have knowledge of any Default or Event of Default
(other than an Event of Default constituting the failure to pay the
interest on, or the principal of, the Securities if the Trustee
also serves the paying agent for such Securities) until the Trustee
shall have received written notification in the manner set forth in
this Indenture or a Responsible Officer of the Trustee shall have
obtained actual knowledge.

 

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

 

(a) The recitals
contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee shall
not be responsible for any statement in any registration statement,
prospectus, or any other document in connection with the sale of
Securities. The Trustee shall not be responsible for any rating on
the Securities or any action or omission of any rating
agency.

 

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

 

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

 



 

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Section
..04 May Hold Securities.

 


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

 

Section
..05 Moneys Held in Trust.

 


Subject
to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with
the Company to pay thereon.

 

Section
..06 Compensation and
Reimbursement.

 

(a)   The
Company shall pay to the Trustee for each of its capacities
hereunder from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in
writing. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and expenses of the Trustee’s
agents and counsel.

 

(b) The Company shall
indemnify each of the Trustee in each of its capacities hereunder
against any loss, liability or expense (including the cost of
defending itself and including the reasonable compensation and
expenses of the Trustee’s agents and counsel) incurred by it
except as set forth in Section 7.06(c) in the exercise or
performance of its powers, rights or duties under this Indenture as
Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The
Trustee may have one separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of
the Trustee.

 

(c) The Company need
not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or
bad faith.

 

(d) To ensure the
Company’s payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all funds or property
held or collected by the Trustee, except that held in trust to pay
principal of or interest on particular Securities. When the Trustee
incurs expenses or renders services in connection with an Event of
Default specified in Section 6.01(4) or (5), the expenses
(including the reasonable fees and expenses of its counsel) and the
compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions
of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the
Trustee.

 

Section
..07 Reliance on Officer’s
Certificate.

 


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

 

Section
..08 Disqualification; Conflicting
Interests.

 


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

 

Section
..09 Corporate Trustee Required;
Eligibility.

 


There
shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of
Columbia, or a corporation or other Person permitted to act as
trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial, or
District of Columbia authority.

 


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

 



 

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Section
..10 Resignation and Removal; Appointment of
Successor.

 

(a) The Trustee or any
successor hereafter appointed may at any time resign with respect
to the Securities of one or more series by giving written notice
thereof to the Company and the Securityholders of such series. Upon
receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the sending of such
notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of
himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.

 

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

 

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

 

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

 

(iii) the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of its property shall be appointed or
consented to, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;

 


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

 

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

 

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

 

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

 

Section
..11 Acceptance of Appointment By
Successor.

 

(a) In case of the
appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor trustee, such retiring Trustee shall,
upon payment of any amounts due to it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring
Trustee hereunder.

 



 

20







 





 

(b) In case of the
appointment hereunder of a successor trustee with respect to the
Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the
Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor trustee shall
accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
trustee relates, (ii) shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees
of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the
part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such
successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties
and obligations vested in the Trustee under this Indenture, and
each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor trustee
relates.

 

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

 

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

 

(e) Upon acceptance of
appointment by a successor trustee as provided in this Section, the
Company shall send notice of the succession of such trustee
hereunder to the Securityholders. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.

 

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

 


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

 

Section
..13 Preferential Collection of Claims Against the
Company.

 


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

 

Section
..14 Notice of Default. 

 


If any
Event of Default occurs and is continuing and if such Event of
Default is known to a Responsible Officer of the Trustee, the
Trustee shall send to each Securityholder in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act notice
of the Event of Default within the earlier of 90 days after it
occurs and 30 days after it is known to a Responsible Officer of
the Trustee or written notice of it is received by the Trustee,
unless such Event of Default has been cured; provided, however, that, except in the
case of a default in the payment of the principal of (or premium,
if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the
Securityholders.

 



 

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ARTICLE 8

 



CONCERNING THE SECURITYHOLDERS

 

Section
..01 Evidence of Action by
Securityholders.

 


Whenever in this
Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority
or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar
tenor executed by such holders of Securities of that series in
person or by agent or proxy appointed in writing.

 


If the
Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an
Officer’s Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after
the record date.

 

Section
..02 Proof of Execution by
Securityholders.

 


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

 

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

 

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

 


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

 

Section
..03 Who May be Deemed Owners.

 


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

 

Section
..04 Certain Securities Owned by Company
Disregarded.

 


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

 

Section
..05 Actions Binding on Future
Securityholders.

 


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

 



 

22







 





                        




ARTICLE
9

 



SUPPLEMENTAL INDENTURES

 

Section
..01 Supplemental Indentures Without the Consent of
Securityholders.

 


In
addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:

 

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

 

(b) to comply with
Article Ten;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 


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

 


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

 

Section
..02 Supplemental Indentures With Consent of
Securityholders.

 


With
the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture
or indentures at the time Outstanding, the Company, when authorized
by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.01 the rights of the holders of the
Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of
the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or
reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.

 


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

 



 

23







 





 

Section
..03 Effect of Supplemental
Indentures.

 


Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture
shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of
Securities of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.

 

Section
..04 Securities Affected by Supplemental
Indentures.

 


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

 

Section
..05 Execution of Supplemental
Indentures.

 


Upon
the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, shall receive an Officer’s Certificate or an
Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or
permitted by the terms of this Article and that all conditions
precedent to the execution of the supplemental indenture have been
complied with; provided, however, that such Officer’s
Certificate or Opinion of Counsel need not be provided in
connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section
2.01 hereof.

 


Promptly after the
execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) send a notice, setting forth
in general terms the substance of such supplemental indenture, to
the Securityholders of all series affected thereby .as their names
and addresses appear upon the Security Register. Any failure of the
Company to send, or cause the sending of, such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.

 



 

24







 





 



ARTICLE 10

 



SUCCESSOR ENTITY

 

Section
..01 Company
May Consolidate, Etc.

 


Nothing
contained in this Indenture shall prevent any consolidation or
merger of the Company with or into any other Person (whether or not
affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the
Company or its successor or successors); provided, however, the
Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the
survivor of such transaction) or any such sale, conveyance,
transfer or other disposition (other than a sale, conveyance,
transfer or other disposition to a Subsidiary of the Company), the
due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section 2.01 to
be kept or performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act, as then in effect) reasonably satisfactory
in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired
such property.

 

Section
..02 Successor Entity
Substituted.

 

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

 

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

 

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

 



 

25







 





 


 
ARTICLE
11

 



SATISFACTION AND DISCHARGE

 

Section
..01 Satisfaction and Discharge of
Indenture.

 


If at
any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust
by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such
Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03, 7.10, 11.05 and 13.04, that shall survive until the date of
maturity or redemption date, as the case may be, and Sections 7.06
and 11.05, that shall survive to such date and thereafter, and the
Trustee, on demand of the Company and at the cost and expense of
the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such
series.

 

Section
..02 Discharge of Obligations.

 


If at
any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Securities of that
series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption,
as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with
respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with
the Trustee the obligations of the Company under this Indenture
with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4,03, 7.06, 7.10, 11.05 and 13.04 hereof that shall survive until
such Securities shall mature and be paid.

 


Thereafter,
Sections 7.06 and 11.05 shall survive.

 

Section
..03 Deposited Moneys to be Held in
Trust.

 


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

 

Section
..04 Payment of Moneys Held by Paying
Agents.

 


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

 

Section
..05 Repayment to Company.

 


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

 



 

26







 





                               



ARTICLE 12

 



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS

 

Section
..01 No Recourse.

 


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

 



 

27







                          








 



ARTICLE 13

 



MISCELLANEOUS PROVISIONS

 

Section
..01 Effect on Successors and
Assigns.

 


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

 

Section
..02 Actions by Successor.

 


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

 

Section
..03 Surrender of Company
Powers.

 


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

 

Section
..04 Notices.

 


Except
as otherwise expressly provided herein, any notice, request or
demand that by any provision of this Indenture is required or
permitted to be given, made or served by the Trustee, the Security
Registrar, any paying or other agent under this Indenture or by the
holders of Securities or by any other Person pursuant to this
Indenture to or on the Company may be given or served by being
deposited in first class mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the
Trustee), as follows: 10900 Wilshire Blvd., Suite 650, Los Angeles,
CA 90024. Any notice, election, request or demand by the Company or
any Securityholder or by any other Person pursuant to this
Indenture to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.

 

Section
..05 Governing Law; Jury Trial
Waiver.

 


This
Indenture and each Security shall be governed by, and construed in
accordance with, the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is
applicable.

 


EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF,
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INDENTURE.

 

Section
..06 Treatment of Securities as
Debt.

 


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

 

Section
..07 Certificates and Opinions as to Conditions
Precedent.

 

(a) Upon any
application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating
that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12)
relating to the proposed action have been complied with and, if
requested, an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.

 

(b) Each certificate or
opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this
Indenture (other than the certificate to be delivered pursuant to
Section 13.12 of this Indenture or Section 314(a)(1) of the Trust
Indenture Act) shall include (i) a statement that the Person making
such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement
as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.

 



 

28







 





 

Section
..08 Payments on Business Days.

 


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

 

Section
..09 Conflict with Trust Indenture
Act.

 


If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Section 318(c) of
the Trust Indenture Act, such imposed duties shall
control.

 

Section
..10 Counterparts.

 


This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies
of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of
this Indenture as to the parties hereto and may be used in lieu of
the original Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.

 

Section
..11 Separability.

 


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

 

Section
..12 Compliance Certificates.

 


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

 

Section
..13 U.S.A Patriot Act.

 


The
parties hereto acknowledge that in accordance with Section 326 of
the U.S.A. Patriot Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that
establishes a relationship or opens an account with the Trustee.
The parties to this Indenture agree that they will provide the
Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the U.S.A. Patriot
Act.

 

Section
..14 Force Majeure.

 


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

 

Section
..15 Table
of Contents; Headings.

 


The
table of contents and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or
restrict any of the terms or provisions hereof.

 




 

29








 






 


In Witness
Whereof, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above
written.

 



ChromaDex Corporation

 



By:                                                                            





 



Name:                                                                            





 



Title:                                                                            





 


[Trustee], as
Trustee

 



By:                                                                            





 



Name:                                                                            





 



Title:                                                                            





 


 




 

30








 










 



CROSS-REFERENCE TABLE (1)

 


 

 


	


Section of Trust Indenture Act of 1939, as Amended




	


Section of Indenture





	

310(a)

	

7.09


	

310(b)

	

7.08


	
 

	

7.10


	

310(c)

	

Inapplicable


	

311(a)

	

7.13


	

311(b)

	

7.13


	

311(c)

	

Inapplicable


	

312(a)

	

5.01


	
 

	

5.02(a)


	

312(b)

	

5.02(c)


	

312(c)

	

5.02(c)


	

313(a)

	

5.04(a)


	

313(b)

	

5.04(b)


	

313(c)

	

5.04(a)


	
 

	

5.04(b)


	

313(d)

	

5.04(c)


	

314(a)

	

5.03


	
 

	

13.12


	

314(b)

	

Inapplicable


	

314(c)

	

13.07(a)


	

314(d)

	

Inapplicable


	

314(e)

	

13.07(b)


	

314(f)

	

Inapplicable


	

315(a)

	

7.01(a)


	
 

	

7.01(b)


	

315(b)

	

7.14


	

315(c)

	

7.01


	

315(d)

	

7.01(b)


	

315(e)

	

6.07


	

316(a)

	

6.06


	
 

	

8.04


	

316(b)

	

6.04


	

316(c)

	

8.01


	

317(a)

	

6.02


	

317(b)

	

4.03


	

318(a)

	

13.09







_________________

 



(1) 

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





 




 

31