EXHIBIT
4.1


 


OVERSTOCK.COM, INC.


 


TO


 


[TRUSTEE]


 


AS TRUSTEE


 


INDENTURE


 


DATED AS OF


 


SENIOR DEBT SECURITIES


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1            DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Compliance Certificates and Opinions

  	
  6

  
	
  Section 1.3

  	
  Form of Documents Delivered to Trustee

  	
  7

  
	
  Section 1.4

  	
  Acts of Holders; Record Dates

  	
  7

  
	
  Section 1.5

  	
  Notices, etc ., to Trustee and Company

  	
  9

  
	
  Section 1.6

  	
  Notice to Holders; Waiver

  	
  9

  
	
  Section 1.7

  	
  Conflict with Trust Indenture Act

  	
  9

  
	
  Section 1.8

  	
  Effect of Headings and Table of Contents

  	
  9

  
	
  Section 1.9

  	
  Successors and Assigns

  	
  9

  
	
  Section 1.10

  	
  Separability Clause

  	
  10

  
	
  Section 1.11

  	
  Benefits of Indenture

  	
  10

  
	
  Section 1.12

  	
  Governing Law

  	
  10

  
	
  Section 1.13

  	
  Legal Holidays

  	
  10

  
	
  Section 1.14

  	
  Indenture and Securities Solely Corporate Obligations

  	
  10

  
	
  Section 1.15

  	
  Indenture May be Executed in Counterparts

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2            SECURITY FORMS

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  10

  
	
  Section 2.2

  	
  Form of Face of Security

  	
  11

  
	
  Section 2.3

  	
  Form of Reverse of Security

  	
  12

  
	
  Section 2.4

  	
  Form of Legend for Global Securities

  	
  15

  
	
  Section 2.5

  	
  Form of Trustee’s Certificate of Authentication

  	
  15

  
	
  Section 2.6

  	
  Form of Conversion Notice

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3            THE SECURITIES

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable in Series

  	
  16

  
	
  Section 3.2

  	
  Denominations

  	
  18

  
	
  Section 3.3

  	
  Execution, Authentication, Delivery and Dating

  	
  18

  
	
  Section 3.4

  	
  Temporary Securities

  	
  19

  
	
  Section 3.5

  	
  Registration; Registration of Transfer and Exchange

  	
  20

  
	
  Section 3.6

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  21

  
	
  Section 3.7

  	
  Payment of Interest; Interest Rights Preserved

  	
  22

  
	
  Section 3.8

  	
  Persons Deemed Owners

  	
  22

  
	
  Section 3.9

  	
  Cancellation

  	
  23

  
	
  Section 3.10

  	
  Computation of Interest

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4            SATISFACTION AND DISCHARGE

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  23

  
	
  Section 4.2

  	
  Application of Trust Money

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5            REMEDIES

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
  24

  
	
  Section 5.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  25

  
	
  Section 5.3

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
  26

  
	
  Section 5.4

  	
  Trustee May File Proofs of Claim

  	
  26

  
	
  Section 5.5

  	
  Trustee May Enforce Claims Without Possession
  of Securities

  	
  26

  
	
  Section 5.6

  	
  Application of Money Collected

  	
  27

  
	
  Section 5.7

  	
  Limitation on Suits

  	
  27

  
				



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.8

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest and to Convert

  	
  27

  
	
  Section 5.9

  	
  Restoration of Rights and Remedies

  	
  28

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  28

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  28

  
	
  Section 5.12

  	
  Control by Holders

  	
  28

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  28

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  29

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or Extension Laws

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6            THE TRUSTEE

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Certain Duties and Responsibilities

  	
  29

  
	
  Section 6.2

  	
  Notice of Defaults

  	
  29

  
	
  Section 6.3

  	
  Certain Rights of Trustee

  	
  30

  
	
  Section 6.4

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  30

  
	
  Section 6.5

  	
  May Hold Securities and Act as Trustee under
  Other Indentures

  	
  31

  
	
  Section 6.6

  	
  Money Held in Trust

  	
  31

  
	
  Section 6.7

  	
  Compensation and Reimbursement

  	
  31

  
	
  Section 6.8

  	
  Conflicting Interests

  	
  31

  
	
  Section 6.9

  	
  Corporate Trustee Required; Eligibility

  	
  32

  
	
  Section 6.10

  	
  Resignation and Removal; Appointment of Successor

  	
  32

  
	
  Section 6.11

  	
  Acceptance of Appointment by Successor

  	
  33

  
	
  Section 6.12

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  34

  
	
  Section 6.13

  	
  Preferential Collection of Claims Against Company

  	
  34

  
	
  Section 6.14

  	
  Appointment of Authenticating Agent

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7            HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
  35

  
	
  Section 7.2

  	
  Preservation of Information; Communications to Holders

  	
  35

  
	
  Section 7.3

  	
  Reports by Trustee

  	
  36

  
	
  Section 7.4

  	
  Reports by Company

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8            CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Company May Consolidate, etc., Only on Certain
  Terms

  	
  36

  
	
  Section 8.2

  	
  Successor Substituted

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9            SUPPLEMENTAL INDENTURES

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures Without Consent of Holders

  	
  37

  
	
  Section 9.2

  	
  Supplemental Indentures with Consent of Holders

  	
  38

  
	
  Section 9.3

  	
  Execution of Supplemental Indentures

  	
  39

  
	
  Section 9.4

  	
  Effect of Supplemental Indentures

  	
  39

  
	
  Section 9.5

  	
  Conformity with Trust Indenture Act

  	
  39

  
	
  Section 9.6

  	
  Reference in Securities to Supplemental Indentures

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10          COVENANTS

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Payment of Principal, Premium and Interest

  	
  39

  
	
  Section 10.2

  	
  Maintenance of Office or Agency

  	
  39

  
	
  Section 10.3

  	
  Money for Securities Payments to be Held in Trust

  	
  40

  
	
  Section 10.4

  	
  Statement by Officers as to Default

  	
  41

  
	
  Section 10.5

  	
  Existence

  	
  41

  
				



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.6

  	
  Waiver of Certain Covenants

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11          REDEMPTION OF SECURITIES

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of Article

  	
  41

  
	
  Section 11.2

  	
  Election to Redeem; Notice to Trustee

  	
  41

  
	
  Section 11.3

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  42

  
	
  Section 11.4

  	
  Notice of Redemption

  	
  42

  
	
  Section 11.5

  	
  Deposit of Redemption Price

  	
  43

  
	
  Section 11.6

  	
  Securities Payable on Redemption Date

  	
  43

  
	
  Section 11.7

  	
  Securities Redeemed in Part

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12          SINKING FUNDS

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Applicability of Article

  	
  44

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  44

  
	
  Section 12.3

  	
  Redemption of Securities for Sinking Fund

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13          DEFEASANCE AND COVENANT DEFEASANCE

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Company’s Option to Effect Defeasance or Covenant
  Defeasance

  	
  44

  
	
  Section 13.2

  	
  Defeasance and Discharge

  	
  45

  
	
  Section 13.3

  	
  Covenant Defeasance

  	
  45

  
	
  Section 13.4

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  45

  
	
  Section 13.5

  	
  Deposited Money, U. S. Government Obligations and
  Foreign Government Obligations to be Held in Trust; Miscellaneous Provisions

  	
  47

  
	
  Section 13.6

  	
  Reinstatement

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14          CONVERSION OF SECURITIES

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  Applicability of Article

  	
  48

  
	
  Section 14.2

  	
  Exercise of Conversion Privilege

  	
  48

  
	
  Section 14.3

  	
  No Fractional Shares

  	
  49

  
	
  Section 14.4

  	
  Adjustment of Conversion Price

  	
  49

  
	
  Section 14.5

  	
  Notice of Certain Corporate Actions

  	
  49

  
	
  Section 14.6

  	
  Reservation of Shares of Common Stock

  	
  50

  
	
  Section 14.7

  	
  Payment of Certain Taxes upon Conversion

  	
  50

  
	
  Section 14.8

  	
  Nonassessability

  	
  50

  
	
  Section 14.9

  	
  Provision in Case of Consolidation, Merger or Sale
  of Assets

  	
  50

  
	
  Section 14.10

  	
  Duties of Trustee Regarding Conversion

  	
  51

  
	
  Section 14.11

  	
  Repayment of Certain Funds upon Conversion

  	
  51

  
				



 


iii

















 


Overstock.com, Inc.


 


Certain Sections of this
Indenture relating to Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:


 


	
  Section 310

  	
   

  	
  (a)(1)

  	
   

  	
  6.9

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  6.9

  	
   

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.8, 6.10

  	
   

  
	
  Section 311

  	
   

  	
  (a)

  	
   

  	
  6.13

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.13

  	
   

  
	
  Section 312

  	
   

  	
  (a)

  	
   

  	
  7.1, 7.2

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.2

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.2

  	
   

  
	
  Section 313

  	
   

  	
  (a)

  	
   

  	
  7.3

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.3

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.3

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.3

  	
   

  
	
  Section 314

  	
   

  	
  (a)

  	
   

  	
  7.4

  	
   

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  1.1, 10.4

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  1.2

  	
   

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  1.2

  	
   

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  1.2

  	
   

  
	
  Section 315

  	
   

  	
  (a)

  	
   

  	
  6.1

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.2

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  6.1

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  6.1

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  5.14

  	
   

  
	
  Section 316

  	
   

  	
  (a)

  	
   

  	
  1.1

  	
   

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  5.2, 5.12

  	
   

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.8

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  1.4

  	
   

  
	
  Section 317

  	
   

  	
  (a)(1)

  	
   

  	
  5.3

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  5.4

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  10.3

  	
   

  
	
  Section 318

  	
   

  	
  (a)

  	
   

  	
  1.7

  	
   

  



 


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


 


iv

















 


INDENTURE, dated as of
            ,
between Overstock.com, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the “Company”), having
its principal executive office at 6350 South 3000 East, Salt Lake City, Utah
84121, and [Trustee], a
            , as
Trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


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


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE
1




DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.1            Definitions.


 


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


 


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


 


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


 


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


 


(4)           all references to
“$” refer to lawful currency of the United States of America;


 


(5)           unless the context
otherwise requires, any reference to an “Article” or a “Section” refers to an Article or
a Section, as the case may be, of this Indenture; and


 


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


 


“Act,” when used with respect
to any Holder, has the meaning specified in Section 1.4.


 


“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person.


 


“Authenticating Agent” means
any Person authorized by the Trustee pursuant to Section 6.14 to act on
behalf of the Trustee to authenticate Securities of one or more series.


 

















 


“Board of Directors” means
either the board of directors of the Company or any duly authorized committee
of that board empowered to act for it with respect to this Indenture.


 


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


 


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


 


“Commission” means the
Securities and Exchange Commission, 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.


 


“Common Stock” includes any
stock of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject
to redemption by the Company; provided, however, subject to the
provisions of Section 14.9, shares issuable upon conversion of Securities
shall include only shares of the class designated as Common Stock of the
Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided, further,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.


 


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


 


“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or a Vice President, and by its principal financial
officer, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.


 


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


 


“Corporate Trust Office” means
the corporate trust office of the Trustee at
                                                    ,
or such other office, designated by the Trustee by written notice to the
Company, at which at any particular time its corporate trust business shall be
administered.


 


“corporation” means a
corporation, association, company, joint-stock company or business trust.


 


“Covenant Defeasance” has the
meaning specified in Section 13.3.


 


“Defaulted Interest” has the
meaning specified in Section 3.7.


 


“Defeasance” has the meaning
specified in Section 13.2.


 


2

















 


“Depositary” means, with
respect to Securities of any series issuable in whole or in part in the form of
one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated
by Section 3.1.


 


“euro” or “euros” means the
currency adopted by those nations participating in the third stage of the
economic and monetary union provisions of the Treaty on European Union, signed
at Maastricht on February 7, 1992.


 


“European Economic Area” means
the member nations of the European Economic Area pursuant to the Oporto
Agreement on the European Economic Area dated May 2, 1992, as amended.


 


“European Union” means the
member nations of the European Union established by the Treaty of European
Union, signed at Maastricht on February 2, 1992, which amended the Treaty
of Rome establishing the European Community.


 


“Event of Default” has the
meaning specified in Section 5.1.


 


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


 


“Expiration Date” has the meaning
specified in Section 1.4.


 


“Foreign Government Obligation”
means with respect to Securities of any series which are not denominated in the
currency of the United States of America (x) any security which is (i) a
direct obligation of the government which issued or caused to be issued the
currency in which such security is denominated and for the payment of which
obligations its full faith and credit is pledged or, with respect to Securities
of any series which are denominated in euros, a direct obligation of any member
nation of the European Union for the payment of which obligation the full faith
and credit of the respective nation is pledged so long as such nation has a
credit rating at least equal to that of the highest rated member nation of the
European Economic Area, or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of a government
specified in clause (i) above the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the such government, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any Foreign Government Obligation which is specified in clause (x) above
and held by such bank for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any
Foreign Government Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Foreign Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.


 


“Global Security” means a
Security that evidences all or part of the Securities of any series and bears
the legend set forth in Section 2.4 (or such legend as may be specified as
contemplated by Section 3.1 for such Securities).


 


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


 


“Indenture” means this
instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term “Indenture” shall
also include the terms of particular series of Securities established as
contemplated by Section 3.1; provided, however, that if at
any time more than one Person is acting as Trustee under this Indenture due to
the appointment of one or more separate Trustees for any one or more separate
series of Securities, “Indenture” shall mean, with respect to such series of
Securities for which any such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more 


 


3

















 


indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 3.1, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered
after such Person had become such Trustee, but to which such person, as such
Trustee, was not a party; provided, further that in the event
that this Indenture is supplemented or amended by one or more indentures
supplemental hereto which are only applicable to certain series of Securities,
the term “Indenture” for a particular series of Securities shall only include
the supplemental indentures applicable thereto.


 


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


 


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


 


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


 


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


 


“Notice of Default” means a
written notice of the kind specified in Section 5.1(4).


 


“Officers’ Certificate” means a
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President or a Vice President, and by the
principal financial officer, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers’ Certificate given pursuant to
Section 10.4 shall be the principal executive, financial or accounting
officer of the Company.


 


“Opinion of Counsel” means a
written opinion of counsel, who may be counsel for, or an employee of, the
Company, and who shall be reasonably acceptable to the Trustee.


 


“Original Issue Discount
Security” means any Security that provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.


 


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


 


(1)           Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


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


 


(3)           Securities as to
which Defeasance has been effected pursuant to Section 13.2; and


 


(4)           Securities which
have been paid pursuant to Section 3.6 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it 


 


4

















 


that such
Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;


 


provided, however,
that in determining whether the Holders of the requisite principal amount of
the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 5.2,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 3.1, (C) the
principal amount of a Security denominated in one or more non-U.S. dollar
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 3.1, of the principal amount of such Security
(or, in the case of a Security described in clause (A) or (B) above,
of the amount determined as provided in such clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.


 


“Paying Agent” means any Person
authorized by the Company to pay the principal of or any premium or interest on
any Securities on behalf of the Company.


 


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


 


“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where
the principal of and any premium and interest on the Securities of that series
are payable as specified as contemplated by Section 3.1.


 


“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.


 


“Record Date” means any Regular
Record Date or Special Record Date.


 


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


 


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


 


“Regular Record Date” for the
interest payable on any Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated by Section 3.1.


 


“Responsible Officer” means,
when used with respect to the Trustee, an officer of the Trustee in the
Corporate Trust Office assigned and duly authorized by the Trustee to
administer its corporate trust matters.


 


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


 


5

















 


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


 


“Security Register” and
“Security Registrar” have the respective meanings specified in Section 3.5.


 


“Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section 3.7.


 


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


 


“Subsidiary” means a Person of
which more than 50% of the outstanding voting stock having the power to elect a
majority of the board of directors of such Person (in the case of a corporation)
is, or of which more than 50% of the equity interests (in the case of a Person
which is not a corporation) are, at the time owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries. For the purposes of this definition, “voting stock”
means stock or other similar interests which ordinarily has voting power for
the election of directors or persons performing similar functions, whether at
all times or only so long as no senior class of stock or other interests has
such voting power by reason of any contingency.


 


“Trust Indenture Act” means the
Trust Indenture Act of 1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended.


 


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


 


“U.S. Government Obligation”
means (x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation 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, which, in
either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in clause (x) above
and held by such bank for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary receipt.


 


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


 


Section 1.2            Compliance
Certificates and Opinions.


 


Upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers’ Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.


 


6
















 


Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Indenture shall include,


 


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


 


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


 


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


 


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


 


Section 1.3            Form of
Documents Delivered to Trustee.


 


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


 


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


 


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


 


Section 1.4            Acts
of Holders; Record Dates.


 


Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. The Trustee shall
promptly deliver to the Company copies of all such instrument or instruments
delivered to the Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


The fact and date of the
execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him or
her the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority. The
fact 


 


7

















 


and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.


 


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


 


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


 


The Company may set any day as
a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give, make or take any request, demand,
authorization, direction, vote, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders
of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.6.


 


The Trustee may set any day as
a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2,
(iii) any request to institute proceedings referred to in Section 5.7(2) or
(iv) any direction referred to in Section 5.12, in each case with
respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company’s expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.6.


 


With respect to any record date
set pursuant to this Section, the party hereto which sets such record dates may
designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such
change shall be effective unless notice of the proposed new Expiration Date is
given to the other party hereto in writing, and to each Holder of Securities of
the relevant series in the manner set forth in Section 1.6, on or prior to
the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.


 


8

















 


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


 


Section 1.5            Notices,
etc ., to Trustee and Company.


 


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


 


(1)           the Trustee by any
Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing (or by facsimile transmissions, provided
that oral confirmation of receipt shall have been received) to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust Department,
or


 


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


 


Section 1.6            Notice
to Holders; Waiver.


 


Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or delivered by hand or overnight courier to each
Holder affected by such event, at its address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. Neither the
failure to mail or deliver by hand or overnight courier any notice, nor any
defect in any notice so mailed or delivered by hand or overnight courier, to
any particular Holder shall affect the sufficiency of such notice with respect
to other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.


 


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


 


Section 1.7            Conflict
with Trust Indenture Act.


 


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


 


Section 1.8            Effect
of Headings and Table of Contents.


 


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


 


Section 1.9            Successors
and Assigns.


 


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


 


9

















 


Section 1.10         Separability
Clause.


 


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


 


Section 1.11         Benefits
of Indenture.


 


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


 


Section 1.12         Governing
Law.


 


THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 1.13         Legal
Holidays.


 


In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security or the last
date on which a Holder has the right to convert a Security at a particular
conversion price or rate shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) or, if applicable to a particular series of
Securities, conversion need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, at the Stated Maturity or on such last day for conversion, as
the case may be.


 


Section 1.14         Indenture
and Securities Solely Corporate Obligations.


 


No recourse for the payment of
the principal of or premium, if any, or interest on any Security, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture or
in any supplemental indenture or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer, or director or subsidiary, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any 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 all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.


 


Section 1.15         Indenture
May be Executed in Counterparts.


 


This instrument 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.


 


ARTICLE
2




SECURITY
FORMS


 


Section 2.1            Forms
Generally.


 


The Securities of each series
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary



 


10

















 


therefor or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.3
for the authentication and delivery of such Securities. Any such Board Resolution
or record of such action shall have attached thereto a true and correct copy of
the form of Security referred to therein approved by or pursuant to such Board
Resolution.


 


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


 


Section 2.2            Form of
Face of Security.


 


[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]


 


OVERSTOCK.COM, INC.


 


 


	
  NO.      

  	
   

  	
  $                         

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUSIP:                            

  



 


Overstock.com, Inc., a
corporation duly organized and existing under the laws of Delaware (herein
called the “Company,” which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to             , or
registered assigns, the principal sum of
            
dollars on
             [if the Security is to bear interest prior to Maturity, insert—
, and to pay interest thereon from
             or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on             
and              in
each year, commencing
            ., at
the rate of
            % per
annum, until the principal hereof is paid or made available for payment [if applicable, insert —, provided that any principal
and premium, and any such installment of interest, which is overdue shall bear
interest at the rate of
            % per
annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the
             or
            
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].


 


[If the
Security is not to bear interest prior to Maturity, insert — The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of             %
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment. Interest on any overdue principal or premium shall be
payable on demand. [Any such interest on overdue principal or premium which is
not paid on demand shall bear interest at the rate of             %
per annum (to the extent that the payment of such interest on 


 


11

















 


interest shall
be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]]


 


Payment of the principal of
(and premium, if any) and [if applicable, insert
— any such] interest on this Security will be made at the office or agency of
the Company maintained for that purpose in             ,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable,
insert — ; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].


 


Reference is hereby made to the
further provisions of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the Company
has caused this instrument to be duly executed.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
  OVERSTOCK.COM, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
								



 


Section 2.3            Form of
Reverse of Security.


 


This Security is one of a duly
authorized issue of securities of the Company (herein called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of
            , 200    
(herein called the “Indenture,” which term shall have the meaning assigned to
it in such instrument), between the Company and [Trustee], as Trustee (herein
called the “Trustee,” which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert
— limited in aggregate principal amount to $            ].


 


[If
applicable, insert — The Securities of this series are subject to
redemption upon not less than [if applicable, insert
— 30] days’ notice by mail, [if applicable, insert—
(1) on             
in any year commencing with the year
             and
ending with the year             
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable, insert— on or after             ,
20    ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert—
on or before             ,
            %, and
if redeemed] during the 12-month period beginning
             of the
years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a Redemption Price equal to
            % of
the principal amount, together in the case of any such redemption [if
applicable, insert— (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption 


 


12

















 


Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]


 


[If
applicable, insert— The Securities of this series are subject to
redemption upon not less than [if applicable, insert 30] days’ notice by mail,
(1) on
             in any
year commencing with the year
             and
ending with the year
            
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert— on or after
            ], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning
             of the
years indicated,


 


	
  Year

  	
   

  	
  Redemption Price for

   Redemption Through Operation

  of the Sinking Fund

  	
   

  	
  Redemption Price For

  Redemption Otherwise Than

  Through

  Operation of the

  Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a Redemption Price equal to
            % of
the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]


 


[If
applicable, insert— Notwithstanding the foregoing, the Company may
not, prior to
            ,
redeem any Securities of this series as contemplated by [if
applicable, insert— clause (2) of] the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice)
of less than
            % per
annum.]


 


[If
applicable, insert— The sinking fund for this series provides for
the redemption on
             in
each year beginning with the year
             and
ending with the year
             of [if applicable, insert— not less than
$            
(“mandatory sinking fund”) and not more than]
$            
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if applicable, insert— mandatory] sinking fund payments may
be credited against subsequent [if applicable, insert—
mandatory] sinking fund payments otherwise required to be made [if applicable, insert— , in the inverse order in which they
become due].]


 


[If the
Security is subject to redemption of any kind, insert— In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]


 


[If
applicable, insert— The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [,
in each case] upon compliance with certain conditions set forth in the
Indenture.]


 


[If the
Security is convertible into other securities of the Company, specify the
conversion features.]


 


[If the
Security is not an Original Issue Discount Security, insert — If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]


 


[If the
Security is an Original Issue Discount Security, insert — If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be 


 


13

















 


declared due
and payable in the manner and with the effect provided in the Indenture. Such
amount shall be equal to — insert formula for
determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company’s obligations in
respect of the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]


 


The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of more
than 50% in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


As provided in and subject to
the provisions of the Indenture, the Holder of this Security shall not have the
right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than a majority in principal amount of the Securities of
this series at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or
after the respective due dates expressed herein.


 


No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.


 


As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this
Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.


 


The Securities of this series
are issuable only in registered form without coupons in denominations of $            
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.


 


No service charge shall be made
for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.


 


Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


14

















 


All terms used in this Security
that are defined in the Indenture shall have the meanings assigned to them in
the Indenture.


 


Section 2.4            Form of
Legend for Global Securities.


 


Unless otherwise specified as
contemplated by Section 3.1 for the Securities evidenced thereby, every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:


 


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


 


Section 2.5            Form of
Trustee’s Certificate of Authentication.


 


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


 


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


 


	
   

  	
  [Trustee],

  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Officer

  



 


Section 2.6            Form of
Conversion Notice.


 


Unless otherwise provided as
contemplated by Section 3.1 or in a supplemental indenture for the
Securities evidenced hereby, conversion notices shall be in substantially the
following form:


 


To Overstock.com, Inc.:


 


The undersigned owner of this
Security hereby irrevocably exercises the option to convert this Security, or
portion hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of the Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon the conversion, together with any check in
payment for fractional shares and any Securities representing any unconverted
principal amount hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect hereto. Any amount required to be
paid by the undersigned on account of interest accompanies this Security.


 


	
  Principal Amount to be Converted

  	
   

  
	
  (in an integral multiple of $1,000, if less
  than all)

  	
   

  
	
  U.S. $           

  	
   

  



 


	
  Dated:

  	
   

  	
   

  	
   

  	
  Signature(s) must be guaranteed by an eligible guarantor 

  
	
   

  	
   

  	
  institution (banks, stockbrokers, savings and loan associations and
  credit unions with membership in an approved signature guarantee medallion
  program) pursuant to Securities and Exchange Commission Rule 17Ad-15.

  



 


15

















 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Guaranty

  



 


Fill in for
registration of shares of Common Stock and Security if to be issued otherwise
than to the registered Holder.


 


	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Social Security or Other Taxpayer
  Identification

  Number

  
	
   

  	
   

  	
   

  
	
  Please print Name and Address

  (including zip code)

  	
   

  	
   

  



 


[The above conversion notice is
to be modified, as appropriate, for conversion into other securities or
property of the Company.]


 


ARTICLE
3




THE
SECURITIES


 


Section 3.1            Amount
Unlimited; Issuable in Series.


 


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. There shall be established in or pursuant to a Board
Resolution and, subject to Section 3.3, set forth, or determined in the
manner provided, in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,


 


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


 


(2)           any limit upon the
aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6
or 11.7 and except for any Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered hereunder);


 


(3)           the Person to whom
any interest on a Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest;


 


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


 


(5)           the rate or rates
(which may be fixed or variable) at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date for any such interest payable on any Interest
Payment Date (or the method for determining the dates and rates);


 


(6)           the place or places
where the principal of and any premium and interest on any Securities of the
series shall be payable;


 


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


 


16

















 


the Company and,
if other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;


 


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


 


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


 


(10)         if the amount of
principal of or any premium or interest on any Securities of the series may be
determined with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;


 


(11)         if other than the
currency of the United States of America, the currency, currencies or currency
units in which the principal of or any premium or interest on any Securities of
the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose,
including for purposes of the definition of “Outstanding” in Section 1.1;


 


(12)         if the principal of
or any premium or interest on any Securities of the series is to be payable, at
the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the principal
of or any premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the manner
in which such amount shall be determined);


 


(13)         if other than the
entire principal amount thereof, the portion of the principal amount of any
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2;


 


(14)         if the principal
amount payable at the Stated Maturity of any Securities of the series will not
be determinable as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such Securities as
of any such date for any purpose thereunder or hereunder, including the
principal amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);


 


(15)         if applicable, that
the Securities of the series, in whole or any specified part, shall be
defeasible pursuant to Section 13.2 or Section 13.3 or both such
Sections, or any other defeasance provisions applicable to any Securities of
the series, and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be evidenced;


 


(16)         if applicable, the
terms of any right to convert or exchange Securities of the series into shares
of Common Stock of the Company or other securities or property;


 


(17)         if applicable, that
any Securities of the series shall be issuable in whole or in part in the form
of one or more Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth
in Section 2.4 and any circumstances in addition to or in lieu of those
set forth in clause (2) of the last paragraph of Section 3.5 in which
any such Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part may 


 


17

















 


be registered, in
the name or names of Persons other than the Depositary for such Global Security
or a nominee thereof;


 


(18)         any deletion of, addition
to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of
such Securities to declare the principal amount thereof due and payable
pursuant to Section 5.2;


 


(19)         any deletion of,
addition to or change in the covenants set forth in Article 10 which
applies to Securities of the series;


 


(20)         any Authenticating
Agents, Paying Agents, Security Registrars or such other agents necessary in
connection with the issuance of the Securities of such series, including,
without limitation, exchange rate agents and calculation agents;


 


(21)         if applicable, the
terms of any security that will be provided for a series of Securities,
including any provisions regarding the circumstances under which collateral may
be released or substituted;


 


(22)         if applicable, the
terms of any guaranties for the Securities and any circumstances under which
there may be additional obligors on the Securities; and


 


(23)         any other terms of
the series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.1(5)).


 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.3) set forth, or determined in the manner
provided, in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto.


 


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


 


Section 3.2            Denominations.


 


The Securities of each series
shall be issuable only in registered form without coupons and only in such
denominations as shall be specified as contemplated by Section 3.1. In the
absence of any such specified denomination with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.


 


Section 3.3            Execution,
Authentication, Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its principal financial
officer, its President or one of its Vice Presidents, attested by its
Treasurer, its Secretary or one of its Assistant Treasurers or Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.


 


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


 


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 Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been 


 


18

















 


established by
or pursuant to one or more Board Resolutions as permitted by Sections 2.1 and
3.1, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall
be fully protected in relying upon, a copy of such Board Resolution, the
Officers’ Certificate setting forth the terms of the series and an Opinion of
Counsel, with such Opinion of Counsel stating,


 


(1)           if the form of such
Securities has been established by or pursuant to Board Resolution as permitted
by Section 2.1, that such form has been established in conformity with the
provisions of this Indenture;


 


(2)           if the terms of such
Securities have been established by or pursuant to Board Resolution as
permitted by Section 3.1, that such terms have been established in
conformity with the provisions of this Indenture; and


 


(3)           that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles.


 


If such form or terms have been
so established, 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.


 


Notwithstanding the provisions
of Section 3.1 and of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary
to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1
or the Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.


 


Each Security shall be dated
the date of its authentication.


 


No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.


 


Neither the Company nor the
Trustee shall have any responsibility for any defect in the CUSIP number that
appears on any Security, check, advice of payment or redemption notice, and any
such document may contain a statement to the effect that CUSIP numbers have
been assigned by an independent service for convenience of reference and that
neither the Company nor the Trustee shall be liable for any inaccuracy in such
numbers.


 


Section 3.4            Temporary
Securities.


 


Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.


 


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


 


Section 3.5            Registration; Registration
of Transfer and Exchange.


 


The Company shall cause to be
kept at the Corporate Trust Office of the Trustee a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed “Security Registrar”
for the purpose of registering Securities and transfers of Securities as herein
provided.


 


Upon surrender for registration
of transfer of any Security of a series at the office or agency of the Company
in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of like tenor and aggregate principal amount.


 


At the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.


 


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


 


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


 


No service charge shall be made
for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6
or 11.7 not involving any transfer.


 


If the Securities of any series
(or of any series and specified tenor) are to be redeemed in part, the Company
shall not be required (A) to issue, register the transfer of or exchange
any Securities of that series (or of that series and specified tenor, as the
case may be) during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such Securities
selected for redemption under Section 11.3 and ending at the close of
business on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.


 


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


 


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


 


(2)           Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged in
whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global Security
or (C) there shall exist such circumstances, if any, in addition to or in
lieu of the foregoing as have been specified for this purpose as contemplated
by Section 3.1.


 


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


 


(4)           Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether
pursuant to this Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.


 


Section 3.6            Mutilated, Destroyed,
Lost and Stolen Securities.


 


If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


If there shall be delivered to
the Company and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


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


 


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


 


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


 


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


 


21

















 


Section 3.7            Payment of Interest;
Interest Rights Preserved.


 


Except as otherwise provided as
contemplated by Section 3.1 with respect to any series of Securities or in
a supplemental indenture with respect to any series of Securities, interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.


 


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


 


(1)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time the Company shall
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 be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner
set forth in Section 1.6, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).


 


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


 


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


 


Section 3.8            Persons Deemed Owners.


 


Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
of principal of and any premium and (subject to Section 3.7) any interest
on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.


 


22

















 


Section 3.9            Cancellation.


 


All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary procedures.


 


Section 3.10         Computation of Interest.


 


Except as otherwise specified
as contemplated by Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.


 


ARTICLE
4




SATISFACTION
AND DISCHARGE


 


Section 4.1            Satisfaction and
Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when


 


(1)           either


 


(A)          all
Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by the Trustee or the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or


 


(B)           all
such Securities not theretofore delivered to the Trustee for cancellation


 


(i)            have
become due and payable, or


 


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


 


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


 


and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;


 


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


 


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


 


23

















 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive.


 


Section 4.2            Application of Trust
Money.


 


Subject to the provisions of
the last paragraph of Section 10.3, all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.


 


ARTICLE
5


 


REMEDIES


 


Section 5.1            Events of Default.


 


“Event of Default,” wherever
used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless in the Board
Resolution, supplemental indenture or Officers’ Certificate establishing such
series, it is provided that such series shall not have the benefit of said
Event of Default:


 


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


 


(2)           default
in the payment of the principal of or any premium on any Security of that
series at its Maturity; or


 


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


 


(4)           default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder; or


 


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


 


24

















 


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


 


(7)           any other
Event of Default provided with respect to Securities of that series in the
Board Resolution, supplemental indenture or Officers’ Certificate establishing
that series.


 


Section 5.2            Acceleration of
Maturity; Rescission and Annulment.


 


Unless the Board Resolution,
supplemental indenture or Officers’ Certificate establishing such series
provides otherwise, if an Event of Default (other than an Event of Default
specified in Section 5.1(5) or 5.1(6)) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) and premium, if any,
together with accrued and unpaid interest, if any, thereon, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal amount
(or specified amount) and premium, if any, together with accrued and unpaid
interest, if any, thereon, shall become immediately due and payable. If an
Event of Default specified in Section 5.1(5) or 5.1(6) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof)
and premium, if any, together with accrued and unpaid interest, if any,
thereon, shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, become immediately due and payable.


 


At any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if


 


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


 


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


 


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


 


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


 


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


 


(2)           all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series that have become due
solely by such declaration of acceleration, have been


 


25

















 


cured or waived as provided in Section 5.13. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.


 


Section 5.3            Collection of
Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that if


 


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


 


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


 


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


 


Section 5.4            Trustee May File
Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.7.


 


No provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors’ or other similar
committee.


 


Section 5.5            Trustee May Enforce
Claims Without Possession of Securities.


 


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


 


26

















 


Section 5.6            Application of Money
Collected.


 


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


 


FIRST: To the payment of all
amounts due the Trustee under Section 6.7;


 


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


 


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


 


Section 5.7            Limitation on Suits.


 


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


 


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


 


(2)           the
Holders of more than 50% in aggregate principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


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


 


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


 


(5)           no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series; it being understood and intended
that no one or more of such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or
to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.


 


Section 5.8            Unconditional Right of
Holders to Receive Principal, Premium and Interest and to Convert.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), to convert such Securities in accordance
with Article 14 to the extent that such right to convert is applicable to
such Security, and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.


 


27

















 


Section 5.9            Restoration of Rights
and Remedies.


 


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


 


Section 5.10         Rights and Remedies
Cumulative.


 


Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


Section 5.11         Delay or Omission Not
Waiver.


 


No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee (subject to the limitations contained in this
Indenture) or by the Holders, as the case may be.


 


Section 5.12         Control by Holders.


 


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


 


(1)           such
direction shall not be in conflict with any rule of law or with this
Indenture and the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to Holders of Securities of that series, or any
other series, not taking part in such direction; and


 


(2)           the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction or this Indenture.


 


Section 5.13         Waiver of Past Defaults.


 


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


 


(1)           a default
in the payment of the principal of or any premium or interest on any Security
of such series as and when the same shall become due and payable by the terms thereof,
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest, principal and premium,
if any, has been deposited with the Trustee), or


 


(2)           to the
extent such right is applicable to such Security, a failure by the Company on
request to convert any Security into Common Stock; or


 


28

















 


(3)           in
respect of a covenant or provision hereof which under Article 9 cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected.


 


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


 


Section 5.14         Undertaking for Costs.


 


In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and
to the extent provided in the Trust Indenture Act; provided  that
neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or in any suit for the
enforcement of the right to convert any Security in accordance with Article 14.


 


Section 5.15         Waiver of Usury, Stay or
Extension Laws.


 


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


 


ARTICLE
6



THE TRUSTEE


 


Section 6.1            Certain Duties and
Responsibilities.


 


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


 


Section 6.2            Notice of Defaults.


 


If a default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that except in the
case of a default in the payment of principal of (or premium, if any) or
interest on any Securities of such series or in the payment of any sinking fund
installment or any conversion right applicable to Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
holders of Securities of such series; provided, further, however,
that in the case of any default of the character specified in Section 5.1(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event that is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.


 


29

















 


Except with respect to Section 10.1,
the Trustee shall have no duty to inquire as to the performance of the Company
with respect to the covenants contained in Article 10. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (i) any
Default or Event of Default occurring pursuant to Sections 5.1(1), 5.1(2) and
5.1(3) (defaults in payments on the Securities) or (ii) any Default
or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.


 


Delivery of reports,
information and documents to the Trustee under Section 7.4 is for
informational purposes only 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 its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates).


 


Section 6.3            Certain Rights of
Trustee.


 


Subject to the provisions of Section 6.1:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.4            Not Responsible for
Recitals or Issuance of Securities.


 


The recitals contained herein
and in the Securities, except the Trustee’s certificates of authentication,
shall be taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity, sufficiency or priority of


 


30

















 


this Indenture
or of the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.


 


Section 6.5            May Hold
Securities and Act as Trustee under Other Indentures.


 


The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.


 


Subject to the limitations
imposed by the Trust Indenture Act, nothing in this Indenture shall prohibit
the Trustee from becoming and acting as trustee under other indentures under
which other securities, or certificates of interest of participation in other
securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.


 


Section 6.6            Money Held in Trust.


 


Money held by the Trustee in
trust hereunder 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
money received by it hereunder except as otherwise agreed with the Company.


 


Section 6.7            Compensation and
Reimbursement.


 


The Company
agrees:


 


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


 


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


 


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


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 5.1(5) or
Section 5.1(6) hereof occurs, the expenses and the compensation for
the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any applicable
bankruptcy, insolvency, reorganization or similar law.


 


Section 6.8            Conflicting Interests.


 


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


 


31
















 


Section 6.9            Corporate Trustee
Required; Eligibility.


 


There shall at all times be one
(and only one) Trustee hereunder with respect to the Securities of each series,
which may be Trustee hereunder for Securities of one or more other series. Each
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has (or if the Trustee is a member of a bank holding company
system, its bank holding company has) a combined capital and surplus of at
least $50,000,000. If any such Person or bank holding company publishes reports
of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person or bank holding company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.


 


Section 6.10         Resignation and Removal;
Appointment of Successor.


 


No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 6.11.


 


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


 


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


 


If at any time:


 


(1)           the
Trustee shall fail to comply with Section 6.8 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or


 


(2)           the
Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such Holder, or


 


(3)           the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer 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, (A) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.


 


If the Trustee shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the


 


32

















 


Outstanding
Securities of such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, the retiring Trustee may petition, or any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may petition, on behalf of himself and all others similarly
situated, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.


 


The Company shall give notice
of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 1.6. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.


 


Section 6.11         Acceptance of Appointment
by Successor.


 


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


 


In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.


 


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 the first or second preceding
paragraph, as the case may be.


 


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.


 


33

















 


Section 6.12         Merger, Conversion,
Consolidation or Succession to Business.


 


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


 


Section 6.13         Preferential Collection
of Claims Against Company.


 


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


 


Section 6.14         Appointment of
Authenticating Agent.


 


The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 3.6,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having (or if the Authenticating Agent is a member of a
bank holding company system, its bank holding company has) a combined capital
and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.


 


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


 


An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating


 


34

















 


Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.


 


The Trustee agrees to pay to
each Authenticating Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 6.7.


 


If an appointment with respect
to one or more series is made pursuant to this Section 6.12, the
Securities of such series may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


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


 


	
   

  	
  [TRUSTEE],

  As Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Officer

  



 


ARTICLE
7



HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.1            Company to Furnish
Trustee Names and Addresses of Holders.


 


The Company will furnish or
cause to be furnished to the Trustee


 


(1)           semi-annually,
not later than 15 days after the Regular Record Date for each respective series
of Securities, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as of such
Regular Record Date, as the case may be, or if there is no Regular Record Date
for such series of Securities, semi-annually, and


 


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


 


provided that no
such list need be furnished by the Company to the Trustee so long as the
Trustee is acting as Security Registrar.


 


Section 7.2            Preservation of
Information; Communications to Holders.


 


The Trustee shall preserve, in
as current a form as is reasonably practicable, the names and addresses of
Holders contained in the most recent list furnished to the Trustee as provided
in Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.


 


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


 


35

















 


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


 


Section 7.3            Reports by Trustee.


 


The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.


 


Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted
no later than July 15 in each calendar year, commencing with the first July 15
after the first issuance of Securities pursuant to this Indenture.


 


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


 


Section 7.4            Reports by Company.


 


The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13
or 15(d) of the Exchange Act shall be filed with the Trustee within 15
days after the same is so required to be filed with the Commission.


 


ARTICLE
8



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.1            Company May Consolidate,
etc., Only on Certain Terms.


 


The Company shall not
consolidate with or merge into any other Person (in a transaction in which the
Company is not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless:


 


(1)           in case
the Company shall consolidate with or merge into another Person (in a
transaction in which the Company is not the surviving corporation) or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be
a corporation, limited liability company, partnership, trust or other business
entity, shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on all the Securities
and the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed and the conversion rights shall
be provided for in accordance with Article 14, if applicable, or as
otherwise specified pursuant to Section 3.1, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the Person which shall have
acquired the Company’s assets;


 


(2)           immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no


 


36

















 


event which, after
notice or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing; and


 


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


 


Section 8.2            Successor Substituted.


 


Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 8.1, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE
9


 


SUPPLEMENTAL
INDENTURES


 


Section 9.1            Supplemental
Indentures Without Consent of Holders.


 


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


 


(1)           to
evidence the succession of another Person to the Company, or successive
successions, and the assumption by any such successor of the covenants of the
Company herein and in the Securities in compliance with Article 8; or


 


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


 


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


 


(4)           to add to
or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or


 


(5)           to add
to, change or eliminate any of the provisions of this Indenture in respect of
one or more series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or


 


37

















 


(6)           to secure
the Securities, including provisions regarding the circumstances under which
collateral may be released or substituted; or


 


(7)           to add or
provide for a guaranty of the Securities or additional obligors on the
Securities; or


 


(8)           to
establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 3.1; or


 


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


 


(10)         to cure any
ambiguity, to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture, provided
that such action pursuant to this clause (10) shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect; or


 


(11)         to
supplement any of the provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of
Securities pursuant to Articles 4 and 13, provided that any such action
shall not adversely affect the interests of the Holders of Securities of such
series or any other series of Securities in any material respect.


 


Section 9.2            Supplemental Indentures
with Consent of Holders.


 


With the consent of the Holders
of a majority in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,


 


(1)           change the
Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal or premium amount thereof or
the rate of interest thereon or any amount payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or reduce
the amount of any sinking fund payment, or change the coin or currency in which
any Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or, in the case of Securities of any series that are convertible into
Securities or other securities of the Company, adversely affect the right of
Holders to convert any of the Securities of such series other than as provided
in or pursuant to this Indenture, or


 


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


 


(3)           modify
any of the provisions of this Section, Section 5.13 or Section 10.8,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to


 


38

















 


changes in the
references to “the Trustee” and concomitant changes in this Section and Section 10.8,
or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.1(8).


 


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


 


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


 


Section 9.3            Execution of
Supplemental Indentures.


 


In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


Section 9.4            Effect of Supplemental
Indentures.


 


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


 


Section 9.5            Conformity with Trust
Indenture Act.


 


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


 


Section 9.6            Reference in
Securities to Supplemental Indentures.


 


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


 


ARTICLE
10



COVENANTS


 


Section 10.1         Payment of Principal,
Premium and Interest.


 


The Company covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of and any premium and interest on the Securities
of that series in accordance with the terms of the Securities and this
Indenture.


 


Section 10.2         Maintenance of Office or
Agency.


 


The Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series may be surrendered for


 


39

















 


conversion and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands. Unless otherwise provided in a supplemental
indenture or pursuant to Section 3.1 hereof, the Place of Payment for any
series of Securities shall be the Corporate Trust Office of the Trustee.


 


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


 


Section 10.3         Money for Securities
Payments to be Held in Trust.


 


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


 


Whenever the Company shall have
one or more Paying Agents for any series of Securities, it will, on or prior to
each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.


 


The Company will cause each
Paying Agent for any series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of any
default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon
the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent for payment in respect of the Securities of that
series.


 


The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.


 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or any premium or interest on any Security of any
series and remaining unclaimed for a period ending on the earlier of the date
that is ten Business Days prior to the date such money would escheat to the
State or two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified


 


40

















 


therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.


 


Section 10.4         Statement by Officers as
to Default.


 


The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers’ Certificate, stating whether or not
to the best knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
The fiscal year of the Company currently ends on December 31; and the
Company will give the Trustee prompt written notice of any change of its fiscal
year.


 


Section 10.5         Existence.


 


Subject to Article 8, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence.


 


Section 10.6         Waiver of Certain
Covenants.


 


Except as otherwise specified
as contemplated by Section 3.1 for Securities of a series, the Company
may, with respect to the Securities of any series, omit in any particular
instance to comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 3.1(19), 9.1(2) or 9.1(7) for
the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.


 


ARTICLE
11


 


REDEMPTION
OF SECURITIES


 


Section 11.1         Applicability of Article.


 


Securities of any series that
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section 3.1
for such Securities) in accordance with this Article.


 


Section 11.2         Election to Redeem;
Notice to Trustee.


 


The election of the Company to
redeem any Securities shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 3.1 for such Securities. In
case of any redemption at the election of the Company of less than all the
Securities of any series (including any such redemption affecting only a single
Security), the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with
such restriction.


 


41
















 


Section 11.3         Selection by Trustee of Securities to
Be Redeemed.


 


If less than all the
Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by lot, or in the Trustee’s discretion, on a pro-rata basis, provided
that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects
only a single Security), the particular Securities to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.


 


If any Security selected for
partial redemption is converted in part before termination of the conversion right
with respect to the portion of the Security so selected, the converted portion
of such Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities that have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.


 


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


 


The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting
only a single Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security.


 


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


 


Section 11.4         Notice of Redemption.


 


Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not fewer than 30 nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified in the Securities to be redeemed, to each Holder of Securities to be
redeemed, at its address appearing in the Security Register.


 


All notices of redemption
shall state:


 


(1)           the
Redemption Date,


 


(2)           the
Redemption Price (including accrued interest, if any),


 


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


 


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


 


42

















 


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


 


(6)           the
place or places where each such Security is to be surrendered for payment of
the Redemption Price,


 


(7)           if
applicable, the conversion price or rate, the date on which the right to
convert the principal of the Securities or the portions thereof to be redeemed
will terminate, and the place or places where such Securities may be
surrendered for conversion,


 


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


 


(9)           the
CUSIP number or numbers and/or common codes of the Security being redeemed;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.


 


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


 


Section 11.5         Deposit of Redemption Price.


 


On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.3) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.


 


If any Security called for
redemption is converted, any money deposited with the Trustee or with a Paying
Agent or so segregated and held in trust for the redemption of such Security
shall (subject to the right of any Holder of such Security to receive interest
as provided in the last paragraph of Section 3.7) be paid to the Company
on Company Request, or if then held by the Company, shall be discharged from
such trust.


 


Section 11.6         Securities Payable on Redemption Date.


 


Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.7.


 


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


 


Section 11.7         Securities Redeemed in Part.


 


Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form


 


43

















 


satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or its attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.


 


ARTICLE 12


 


SINKING FUNDS


 


Section 12.1         Applicability of Article.


 


The provisions of this Article shall
be applicable to any sinking fund for the retirement of Securities of any
series except as otherwise specified as contemplated by Section 3.1 for such
Securities.


 


The minimum amount of any
sinking fund payment provided for by the terms of any Securities 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 such Securities is herein
referred to as an “optional sinking fund payment.” If provided for by the terms
of any Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 12.2. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such
Securities.


 


Section 12.2         Satisfaction of Sinking Fund Payments
with Securities.


 


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


 


Section 12.3         Redemption of Securities for Sinking
Fund.


 


Not fewer than 60 days prior
to each sinking fund payment date for any Securities, the Company will deliver
to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such
Securities, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 12.2 and will also deliver to
the Trustee any Securities to be so delivered. Not fewer than 30 days prior to
each such sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in Section 11.3
and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 11.6 and 11.7.


 


ARTICLE 13


 


DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.1         Company’s Option to Effect Defeasance
or Covenant Defeasance.


 


The Company may elect, at
its option at any time, to have Section 13.2 or Section 13.3 applied
to any Securities or any series of Securities, as the case may be, designated
pursuant to Section 3.1 as being defeasible


 


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pursuant to such Section 13.2
or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1
and upon compliance with the conditions set forth below in this Article. Any
such election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 3.1 for such Securities.


 


Section 13.2         Defeasance and Discharge.


 


Upon the Company’s exercise
of its option (if any) to have this Section applied to any Securities or
any series of Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 13.4 are satisfied (hereinafter called “Defeasance”). For this
purpose, such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder:


 


(1)           the
rights of Holders of such Securities to receive, solely from the trust fund
described in Section 13.4 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and interest on such
Securities when payments are due,


 


(2)           the
Company’s obligations with respect to such Securities under Sections 3.4, 3.5,
3.6, 10.2 and 10.3, and, if applicable, Article 14,


 


(3)           the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and


 


(4)           this
Article.


 


Subject to compliance with
this Article, the Company may exercise its option (if any) to have this Section applied
to any Securities notwithstanding the prior exercise of its option (if any) to
have Section 13.3 applied to such Securities.


 


Section 13.3         Covenant Defeasance.


 


Upon the Company’s exercise
of its option (if any) to have this Section applied to any Securities or
any series of Securities, as the case may be,


 


(1)           the
Company shall be released from its obligations under any covenants provided
pursuant to Sections 3.1(19), 9.1(2) or 9.1(7) for the benefit of the
Holders of such Securities and


 


(2)           the
occurrence of any event specified in Section 5.1(4) (with respect to
any such covenants provided pursuant to Sections 3.1(19), 9.1(2) or
9.1(7)) and the occurrence of any other Event of Default specified pursuant to Section 3.1
shall be deemed not to be or result in an Event of Default,


 


in each case with respect to such Securities or
series of Securities as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section 5.1(4) and
the occurrence of any Event of Default specified pursuant to Section 3.1),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.


 


Section 13.4         Conditions to Defeasance or Covenant
Defeasance.


 


The following shall be the
conditions to the application of Section 13.2 or Section 13.3 to any
Securities or any series of Securities, as the case may be:


 


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(1)           The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9
and agrees to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities,


 


(A)          in the case of Securities of a series
denominated in currency of the United States of America,


 


(i)            cash in currency of the United
States of America in an amount, or


 


(ii)           U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, an amount in cash, or


 


(iii)          a combination thereof, or


 


(B)           in the case of Securities of a series
denominated in currency other than that of the United States of America,


 


(i)            cash in the currency in which such
series of Securities is denominated in an amount, or


 


(ii)           Foreign Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, an amount in cash, or


 


(iii)          a combination thereof,


 


in each case 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 and discharge,
and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and interest on
such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities.


 


(2)           For
Securities denominated in United States dollars, in the event of an election to
have Section 13.2 apply to any Securities or any series of Securities, as
the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that


 


(1)           the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or


 


(2)           since
the date of this instrument, there has been a change in the applicable Federal
income tax law,


 


in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.


 


(3)           For
Securities denominated in United States dollars, in the event of an election to
have Section 13.3 apply to any Securities or any series of Securities, as
the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such


 


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Securities and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.


 


(4)           The
Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that neither such Securities nor any other Securities of the same
series, if then listed on any securities exchange, will be delisted as a result
of such deposit.


 


(5)           No event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or, with regard to any
such event specified in Sections 5.1(5) and (6), at any time on or prior
to the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).


 


(6)           Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act).


 


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


 


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


 


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


 


Section 13.5         Deposited Money, U. S. Government
Obligations and Foreign Government Obligations to be Held in Trust; Miscellaneous
Provisions.


 


Subject to the provisions of
the last paragraph of Section 10.3, all money, U.S. Government Obligations
and Foreign Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.6, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 13.4 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities. Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money, U.S. Government Obligations or Foreign Government
Obligations held by it as provided in Section 13.4 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case
may be, with respect to such Securities.


 


Section 13.6         Reinstatement.


 


If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities


 


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from which the Company has
been discharged or released pursuant to Section 13.2 or 13.3 shall be
revived and reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 13.5 with
respect to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.


 


ARTICLE 14


 


CONVERSION OF SECURITIES


 


Section 14.1         Applicability of Article.


 


The provisions of this Article shall
be applicable to the Securities of any series which are convertible into shares
of Common Stock of the Company, and the issuance of such shares of Common Stock
upon the conversion of such Securities, except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series or in a
supplemental indenture for the Securities of such series.


 


Section 14.2         Exercise of Conversion Privilege.


 


In order to exercise a
conversion privilege, the Holder of a Security of a series with such a
privilege shall surrender such Security to the Company at the office or agency
maintained for that purpose pursuant to Section 10.2, accompanied by a
duly executed conversion notice to the Company substantially in the form set
forth in Section 2.6 stating that the Holder elects to convert such
Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for shares of Common Stock,
which shall be issuable on such conversion, shall be issued. Securities
surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the Holder or its
attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and of any payment required pursuant to a Board
Resolution and, subject to Section 3.3, set forth, or determined in the
manner provided, in an Officers’ Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such reasonable
regulations as the Company may prescribe, the Company shall issue and shall
deliver, at the office or agency at which such Security is surrendered, to such
Holder or on its written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Security (or
specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers’ Certificate or supplemental indenture, and cash as
provided therein in respect of any fractional share of such Common Stock
otherwise issuable upon such conversion. Such conversion shall be deemed to
have been effected immediately prior to the close of business on the date on
which such notice and such payment, if required, shall have been received in
proper order for conversion by the Company and such Security shall have been
surrendered as aforesaid (unless such Holder shall have so surrendered such
Security and shall have instructed the Company to effect the conversion on a
particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be deemed
to be effected immediately prior to the close of business on such date) and at
such time the rights of the Holder of such Security as such Security Holder
shall cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon
such conversion shall be deemed to have become the Holder or Holders of record
of the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 3.7, no payment or adjustment shall be made
upon any conversion on account of any interest accrued on the Securities (or
any part thereof) surrendered for conversion or on account of any dividends on
the Common Stock of the Company issued upon such conversion. In the case of any
Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the unconverted portion of such Security.


 


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Section 14.3         No Fractional Shares.


 


No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. If, except for the provisions of this Section 14.3,
any Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such Holder
an amount in cash equal to the current market value of such fractional share
computed, (i) if such Common Stock is listed or admitted to unlisted
trading privileges on a national securities exchange or market, on the basis of
the last reported sale price regular way on such exchange or market on the last
trading day prior to the date of conversion upon which such a sale shall have
been effected, or (ii) if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange or
market, on the basis of the average of the bid and asked prices of such Common
Stock in the over-the-counter market, on the last trading day prior to the date
of conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section, “trading
day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than
any day on which the Common Stock is not traded on the Nasdaq Global Market, or
if the Common Stock is not traded on the Nasdaq Global Market, on the principal
exchange or market on which the Common Stock is traded or quoted.


 


Section 14.4         Adjustment of Conversion Price.


 


The conversion price or rate
of Securities of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits,
reclassifications, combinations or similar transactions in accordance with the
terms of the supplemental indenture or Board Resolutions setting forth the
terms of the Securities of such series. Whenever the conversion price or rate
is adjusted, the Company shall compute the adjusted conversion price or rate in
accordance with terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers’ Certificate setting forth the adjusted
conversion price or rate and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith be filed at each
office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.2 and, if different, with the Trustee. The Company
shall forthwith cause a notice setting forth the adjusted conversion price or
rate to be mailed, first class postage prepaid, to each Holder of Securities of
such series at its address appearing on the Security Register and to any
conversion agent other than the Trustee.


 


Section 14.5         Notice of Certain Corporate Actions.


 


In case:


 


(1)           the
Company shall declare a dividend (or any other distribution) on its Common
Stock payable otherwise than in cash out of its retained earnings (other than a
dividend for which approval of any shareholders of the Company is required)
that would require an adjustment pursuant to Section 14.4; or


 


(2)           the
Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights (other than any
such grant for which approval of any shareholders of the Company is required);
or


 


(3)           of
any reclassification of the Common Stock of the Company (other than a
subdivision or combination of its outstanding shares of Common Stock, or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any shareholders of the Company is required), or of the sale
of all or substantially all of the assets of the Company; or


 


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


 


49

















 


then the Company shall cause to be filed with the
Trustee, and shall cause to be mailed to all Holders at their last addresses as
they shall appear in the Security Register, at least 20 days (or 10 days in any
case specified in clause (1) or (2) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on which
a record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the
date on which such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash
or other property deliverable upon such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up. If at any
time the Trustee shall not be the conversion agent, a copy of such notice shall
also forthwith be filed by the Company with the Trustee.


 


Section 14.6         Reservation of Shares of Common Stock.


 


The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock of the
Company then issuable upon the conversion of all outstanding Securities of any
series that has conversion rights.


 


Section 14.7         Payment of Certain Taxes upon
Conversion.


 


Except as provided in the
next sentence, the Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.


 


Section 14.8         Nonassessability.


 


The Company covenants that
all shares of its Common Stock that may be issued upon conversion of Securities
will upon issue in accordance with the terms hereof be duly and validly issued
and fully paid and nonassessable.


 


Section 14.9         Provision in Case of Consolidation,
Merger or Sale of Assets.


 


In case of any consolidation
or merger of the Company with or into any other Person, any merger of another
Person with or into the Company (other than a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any conveyance, sale, transfer or
lease of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security of a series
then Outstanding that is convertible into Common Stock of the Company shall
have the right thereafter (which right shall be the exclusive conversion right
thereafter available to said Holder), during the period such Security shall be
convertible, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease, assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or merged with or into or which
merged into or with the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be (a “Constituent Person”), or an Affiliate of
a Constituent Person and (ii) failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer, or
lease is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease by others than a Constituent


 


50

















 


Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised (“Non-electing Share”), then for the purpose of this Section 14.9
the kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by the holders of
each Non-electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-electing Shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article or in
accordance with the terms of the supplemental indenture or Board Resolutions
setting forth the terms of such adjustments. The above provisions of this Section 14.9
shall similarly apply to successive consolidations, mergers, conveyances,
sales, transfers or leases. Notice of the execution of such a supplemental
indenture shall be given by the Company to the Holder of each Security of a
series that is convertible into Common Stock of the Company as provided in Section 1.6
promptly upon such execution. Neither the Trustee nor any conversion agent, if
any, shall be under any responsibility to determine the correctness of any
provisions contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property or cash
receivable by Holders of Securities of a series convertible into Common Stock
of the Company upon the conversion of their Securities after any such
consolidation, merger, conveyance, transfer, sale or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, an Opinion of Counsel
with respect thereto, which the Company shall cause to be furnished to the
Trustee upon request.


 


Section 14.10       Duties of Trustee Regarding Conversion.


 


Neither the Trustee nor any
conversion agent shall at any time be under any duty or responsibility to any
Holder of Securities of any series that is convertible into Common Stock of the
Company to determine whether any facts exist which may require any adjustment
of the conversion price or rate, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock of the Company, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Securities and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of Section 6.1,
neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of its Common
Stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion or to comply with any of the
covenants of the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company.


 


Section 14.11       Repayment of Certain Funds upon Conversion.


 


Any funds which at any time
shall have been deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, and premium,
if any, and interest, if any, on any of the Securities (including, but not
limited to, funds deposited for the sinking fund referred to in Article 12
hereof and funds deposited pursuant to Article 13 hereof) and which shall
not be required for such purposes because of the conversion of such Securities
as provided in this Article 14 shall after such conversion be repaid to
the Company by the Trustee upon the Company’s written request.


 


51

















 


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


 


	
   

  	
  OVERSTOCK.COM,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


	
   

  	
  Title:

  	
   

  



 


	
   

  	
  [TRUSTEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


	
   

  	
  Title:

  	
   

  



 


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