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EXHIBIT 4.6    
  




DIGITAL RIVER, INC.  


and 


            ,
Trustee 


INDENTURE  


Dated as of            , 2002 




Subordinated Securities  








  



 
 

TABLE OF CONTENTS    
  



	 
	 
	 	Page

	ARTICLE 1    DEFINITIONS	 	1
	 	Section 1.01.	Certain Terms Defined	 	1
	ARTICLE 2    SECURITIES	 	6
	 	Section 2.01.	Forms Generally	 	6
	 	Section 2.02.	Form Of Trustee's Certification Of Authentication	 	6
	 	Section 2.03.	Amount Unlimited; Issuable In Series	 	6
	 	Section 2.04.	Authentication And Delivery Of Securities	 	8
	 	Section 2.05.	Execution Of Securities	 	8
	 	Section 2.06.	Certificate Of Authentication	 	9
	 	Section 2.07.	Denomination And Date Of Securities; Payments Of Interest	 	9
	 	Section 2.08.	Registration, Transfer And Exchange	 	9
	 	Section 2.09.	Mutilated, Defaced, Destroyed, Lost And Stolen Securities	 	11
	 	Section 2.10.	Cancellation Of Securities; Destruction Thereof	 	12
	 	Section 2.11.	Temporary Securities	 	12
	 	Section 2.12.	Computation Of Interest	 	12
	ARTICLE 3    COVENANTS OF THE ISSUER AND THE TRUSTEE	 	13
	 	Section 3.01.	Payment Of Principal And Interest	 	13
	 	Section 3.02.	Offices For Payments, Etc.	 	13
	 	Section 3.03.	Paying Agents	 	13
	 	Section 3.04.	Certificate Of The Issuer	 	14
	 	Section 3.05.	Securityholders Lists	 	14
	 	Section 3.06.	Reports By The Issuer	 	14
	 	Section 3.07.	Corporate Existence	 	14
	 	Section 3.08.	Restrictions On Mergers, Sales And Consolidations	 	14
	 	Section 3.09.	Further Assurances	 	14
	ARTICLE 4    REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT	 	15
	 	Section 4.01.	Event Of Default Defined; Acceleration Of Maturity; Waiver Of Default	 	15
	 	Section 4.02.	Collection Of Indebtedness By Trustee; Trustee May Prove Debt	 	16
	 	Section 4.03.	Application Of Proceeds	 	18
	 	Section 4.04.	Suits For Enforcement	 	19
	 	Section 4.05.	Restoration Of Rights On Abandonment Of Proceedings	 	19
	 	Section 4.06.	Limitations On Suits By Securityholder	 	19
	 	Section 4.07.	Unconditional Right Of Securityholders To Institute Certain Suits	 	19
	 	Section 4.08.	Powers And Remedies Cumulative; Delay Or Omission Not Waiver Of Default	 	19
	 	Section 4.09.	Control By Securityholders	 	20
	 	Section 4.10.	Waiver Of Past Defaults	 	20
	 	Section 4.11.	Trustee To Give Notice Of Default, But May Withhold In Certain Circumstances	 	20
	 	Section 4.12.	Right Of Court To Require Filing Of Undertaking To Pay Costs	 	21
	ARTICLE 5    CONCERNING THE TRUSTEE	 	22
	 	Section 5.01.	Duties And Responsibilities Of The Trustee; During Default; Prior To Default	 	22
	 	Section 5.02.	Certain Rights Of The Trustee	 	23
	 	Section 5.03.	Trustee Not Responsible For Recitals, Disposition Of Securities Or Application Of Proceeds Thereof	 	23  



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	 	Section 5.04.	Trustee And Agents May Hold Securities; Collections, Etc.	 	23
	 	Section 5.05.	Moneys Held By Trustee	 	23
	 	Section 5.06.	Compensation And Indemnification Of Trustee And Its Prior Claim	 	23
	 	Section 5.07.	Right Of Trustee To Rely On Officers' Certificate, Etc.	 	23
	 	Section 5.08.	Persons Eligible For Appointment As Trustee	 	24
	 	Section 5.09.	Resignation And Removal; Appointment Of Successor Trustee	 	24
	 	Section 5.10.	Acceptance Of Appointment By Successor	 	25
	 	Section 5.11.	Merger, Conversion, Consolidation Or Succession To Business Of Trustee	 	25
	 	Section 5.12.	Reports By The Trustee	 	26
	ARTICLE 6    CONCERNING THE SECURITYHOLDERS	 	26
	 	Section 6.01.	Evidence Of Action Taken By Securityholders	 	26
	 	Section 6.02.	Proof Of Execution Of Instruments And Of Holding Of Securities; Record Date	 	26
	 	Section 6.03.	Holders To Be Treated As Owners	 	27
	 	Section 6.04.	Securities Owned By Issuer Deemed Not Outstanding	 	27
	 	Section 6.05.	Right Of Revocation Of Action Taken	 	27
	ARTICLE 7    SUPPLEMENTAL INDENTURES	 	28
	 	Section 7.01.	Supplemental Indentures Without Consent Of Securityholders	 	28
	 	Section 7.02.	Supplemental Indentures With Consent Of Securityholders	 	29
	 	Section 7.03.	Effect Of Supplemental Indenture	 	30
	 	Section 7.04.	Documents To Be Given To Trustee	 	30
	 	Section 7.05.	Notation On Securities In Respect Of Supplemental Indentures	 	31
	ARTICLE 8    CONSOLIDATION, MERGER, SALE OR CONVEYANCE	 	31
	 	Section 8.01.	Issuer May Consolidate, Etc., On Certain Terms	 	31
	 	Section 8.02.	Successor Corporation Substituted	 	31
	ARTICLE 9    DISCHARGE OF INDENTURE	 	32
	 	Section 9.01.	Defeasance Within One Year Of Payment	 	32
	 	Section 9.02.	Defeasance	 	32
	 	Section 9.03.	Covenant Defeasance	 	33
	 	Section 9.04.	Application Of Trust Money	 	34
	 	Section 9.05.	Repayment To Issuer	 	34
	ARTICLE 10    MISCELLANIOUS PROVISIONS	 	34
	 	Section 10.01.	Incorporators, Stockholders, Officers And Directors Of Issuer Exempt From Individual Liability	 	34
	 	Section 10.02.	Provisions Of Indenture For The Sole Benefit Of Parties And Securityholders	 	35
	 	Section 10.03.	Successors And Assigns Of Issuer Bound By Indenture	 	35
	 	Section 10.04.	Notices And Demands On Issuer, Trustee And Securityholders	 	35
	 	Section 10.05.	Officers' Certificates And Opinions Of Counsel; Statements To Be Contained Therein	 	35
	 	Section 10.06.	Payments Due On Saturdays, Sundays And Holidays	 	36
	 	Section 10.07.	Conflict Of Any Provision Of Indenture With Trust Indenture Act Of 1939	 	36
	 	Section 10.08.	            Law To Govern	 	36
	 	Section 10.09.	Counterparts	 	36
	 	Section 10.10.	Effect Of Headings	 	36
	ARTICLE 11    REDEMPTION OF SECURITIES AND SINKING FUNDS	 	37
	 	Section 11.01.	Applicability Of Article	 	37
	 	Section 11.02.	Notice Of Redemption; Partial Redemptions	 	37  



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	 	Section 11.03.	Payment Of Securities Called For Redemption	 	38
	 	Section 11.04.	Exclusion Of Certain Securities From Eligibility For Selection For Redemption	 	38
	 	Section 11.05.	Mandatory And Optional Sinking Funds	 	38
	 	Section 11.06.	Conversion Arrangement On Call For Redemption	 	40
	ARTICLE 12    SUBORDINATION OF SECURITIES	 	41
	 	Section 12.01.	Agreement Of Subordination	 	41
	 	Section 12.02.	Agreement Of Subordination	 	41
	 	Section 12.03.	Subrogation Of Securities	 	43
	 	Section 12.04.	Authorization By Securityholders	 	44
	 	Section 12.05.	Notice To Trustee	 	44
	 	Section 12.06.	Trustee's Relation To Senior Indebtedness	 	44
	 	Section 12.07.	No Impairment Of Subordination	 	45
	 	Section 12.08.	Rights Of Trustee	 	45




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        THIS INDENTURE, dated as of            , 2002 between DIGITAL RIVER, INC., a Delaware corporation (the "Issuer"),
                        (the "Trustee"). 


 
 

W I T N E S S E T H:    
  


        WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and 


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


        NOW,
THEREFORE: 


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


 
 

ARTICLE 1
  DEFINITIONS    
  


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


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


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


        "Capital Stock" means, with respect to any Person, including the Issuer, any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-voting) of such Person's capital stock or equity, including, without limitation, all common stock and Preferred Stock. 



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


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        "Common Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now outstanding or issued after the date of this Indenture, including, without limitation, all series and classes of
such common stock. 


        "Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which this Indenture is dated, located
at                        ,
Attention:                        .
 


        "Default" means any Event of Default as defined in Section 4.01 and any event that is, or after notice or passage of time or both
would be, an Event of Default. 


        "Depositary" means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series. 


        "Designated Senior Indebtedness" means obligations of the Issuer under any Senior Indebtedness with respect to which the instrument
creating or evidencing the same or the assumption or guarantee thereof (or related agreements or documents to which the Issuer is a party) expressly provides that the Senior Indebtedness shall be
"Designated Senior Indebtedness" for purposes of the Indenture; provided that the instrument, agreement or other document may place limitations and conditions on the right of that Senior Indebtedness
to exercise the rights of Designated Senior Indebtedness. If any payment made to any holder of any Designated Senior Indebtedness or its representative with respect so such Designated Senior
Indebtedness is rescinded or must otherwise be returned by such holder or representative upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, the reinstated Indebtedness of
the Issuer arising as a result f such rescission or return shall constitute Designated Senior Indebtedness effective as of the date of such rescission or return. 


        "Event of Default" means any event or condition specified as such in Section 4.01. 



        "Holder," "Holder of Securities,"
"Securityholder" or other similar terms mean the registered holder of any Security. 


        "Indebtedness" means, with respect to any Person, and without duplication: 


        (a)  all
indebtedness, obligations and other liabilities (contingent or otherwise) of that Person for borrowed money (including obligations of that Person in respect of
overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection agreements, and any loans or advances from banks, whether or not evidenced by notes or similar
instruments) or evidenced by bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is to the whole of the assets of that Person or to only a portion thereof),
other than any account payable or other accrued current liability or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services, 


        (b)  all
reimbursement obligations and other liabilities (contingent or otherwise) of that Person with respect to letters of credit, bank guaranties or bankers' acceptances, 


        (c)  all
obligations and liabilities (contingent or otherwise) in respect of leases of that Person required, in conformity with generally accepted accounting principles, to
be accounted for as capitalized lease obligations on the balance sheet of that Person and all obligations and other liabilities (contingent or otherwise) under any lease or related document (including
a purchase agreement) entered into for financing purposes in connection with the lease of real property or improvements which provides that 


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that Person is contractually obligated to purchase or cause a third party to purchase the leased property or pay or guaranty a minimum residual value of the leased property to the lessor and the
obligations of that Person under the lease or related document to purchase or to cause a third party to purchase the leased property, 



        (d)  all
obligations of that Person (contingent or otherwise) with respect to an interest rate or other swap, cap or collar agreement or other similar instrument or agreement
or foreign currency hedge, exchange, purchase or similar instrument or agreement, 


        (e)  all
direct or indirect guaranties or similar agreements by that Person in respect of, and obligations or liabilities (contingent or otherwise) of that Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of another Person of the kind described in clauses (a) through (d), 



        (f)    any
indebtedness or other obligations described in clauses (a) through (d) secured by any mortgage, pledge, lien or other encumbrance existing on property
which is owned or held by that Person, regardless of whether the indebtedness or other obligation secured thereby shall have been assumed by that Person, and 


        (g)  any
and all refinancings, replacements, deferrals, renewals, extensions and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation
or liability of the kind described in clauses (a) through (f). 


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


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



        "Issuer" means (except as otherwise provided in Article 5) Digital River, Inc., a Delaware corporation, and, subject to
Article 8, its successors and assigns. 


        "Officers' Certificate" means a certificate signed by any of the following: chairman of the Board of Directors, the president, any vice
president, the chief financial officer, the chief legal officer, the treasurer, any assistant treasurer, the controller, any assistant controller, any secretary or any assistant secretary of the
Issuer or any other person authorized by the Board of Directors to execute such a certificate and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.05. 


        "Opinion of Counsel" means an opinion in writing, subject to customary exceptions, signed by legal counsel who may be an employee of or
counsel to the Issuer and who shall be reasonably satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 10.05, if and to the extent required hereby. 


        "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 4.01. 


        "Outstanding," when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under this Indenture, except: 


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


        (b)  Securities,
or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations (as provided by Section 9.01) in the necessary
amount shall have been 


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deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or provision reasonably satisfactory to the Trustee shall have been made for giving such notice; and 


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


        In
determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01. 



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


        "Preferred Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's preferred or preference stock, whether now outstanding or issued after the date of the Indenture, including, without limitation,
all series and classes of such preferred or preference stock. 


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


        "Record Date" shall have the meaning set forth in Section 2.07. 


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



        "Registered Security" means any Security registered on the register maintained by the Issuer pursuant to Section 2.08. 


        "Responsible Officer" when used with respect to the Trustee means any president, vice president, any assistant vice president, any
assistant secretary, any secretary, any treasurer or any assistant treasurer within the Corporate Trust and Agency Services (or a successor group) of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. 



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


        "Senior Indebtedness" means the principal of, premium, if any, interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in the proceeding) and rent payable on or termination payment with respect
to or in connection with, and all fees, costs, expenses and other amounts accrued or due on or in connection with, Indebtedness of the Issuer, whether outstanding on 


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the date of the Indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Issuer (including all refinancings, replacements, deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing), unless in the case of any particular Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that the Indebtedness shall not be senior in right of payment to the Securities or expressly provides that the Indebtedness is pari
passu or junior to the Securities. The term "Senior Indebtedness" shall include all "Designated Senior Indebtedness. Notwithstanding the foregoing, the term Senior Indebtedness
shall not include Indebtedness of the Issuer to any of its subsidiaries, a majority of the voting stock of which is owned, directly or indirectly, by the Issuer. 


        "Subsidiary" means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of
the total voting power of shares of capital stock or other equity interest entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of that Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or managing general partner of which is such Person or a subsidiary of such Person or (b) the only general partners of which are such Person or of one or
more subsidiaries of such Person (or any combination thereof). 


        "Trustee" means the Person identified as "Trustee" in the first paragraph hereof and, subject to the provisions of Article 5, shall
also include any successor trustee. 


        "Trust Indenture Act of 1939" means the Trust Indenture Act of 1939 as amended from time to time. 


        "UCC" means the Uniform Commercial Code, as in effect in each applicable jurisdiction. 


        "Unregistered Security" means any Security other than a Registered Security. 


        "U.S. Government Obligations" means securities that are (i) direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of 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, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt;  provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt. 


        "vice president" when used with respect to the Issuer means any vice president, whether or not designated by a number or a word or words
added before or after the title of "vice president." 


        "Wholly-Owned" is defined to mean, with respect to any Subsidiary of any person, such Subsidiary if all of the outstanding common stock or
other similar equity ownership interests (but not including preferred stock) in such Subsidiary (other than any director's qualifying shares or investments by foreign nationals mandated by applicable
law) is owned directly or indirectly by such person. 


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


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ARTICLE 2
  SECURITIES    
  


        Section 2.01.    Forms Generally.    The Securities of each series shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to a resolution of the Board of Directors or in one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements,
not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. The Issuer shall furnish any such legends to the Trustee in writing. 


        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 2.02.    Form Of Trustee's Certification Of Authentication.    The Trustee's certificate of
authentication on all Securities shall be in substantially the following form: 


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



	 	 	[TRUSTEE],

        as Trustee
	

 	
 	

By:	

 Authorized Signatory





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


        The
Securities may be issued in one or more series and the Securities of each such Series shall rank equally and pari passu with the
Securities of other series, but all Securities issued hereunder shall be subordinate and junior in right of payment, to the extent and in the manner set forth in Article 12, to all series of
Indebtedness of the Issuer. There shall be established in or pursuant to a resolution of the Board of Directors and set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series: 


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


        (b)  any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03); 



        (c)  if
other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency). 


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


        (e)  the
rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the interest payment dates
on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable; 


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


        (g)  the
price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part,
at the option of the Issuer, pursuant to any sinking fund or otherwise; 


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


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


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


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



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


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


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


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


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


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


        (r)  any
other events of default or covenants with respect to the Securities of such series; and 


        (s)  any
other terms of the series. 


        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 such resolution of the Board of
Directors or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the 


7





 




same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such board resolutions, such Officer's Certificate or any such Indenture
Supplement hereto. 


        Section 2.04.    Authentication And Delivery Of Securities.    At any time and from time to time after the
execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer, signed by any officer authorized to sign an Officer's Certificate, without any further action by the Issuer. 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 5.01) shall be
fully protected in relying upon: 


        (a)  a
certified copy of any resolution or resolutions of the Board of Directors authorizing the action taken pursuant to the resolution or resolutions delivered under
clause 2.04(b) below; 


        (b)  a
copy of any resolution or resolutions of the Board of Directors relating to such series, in each case certified by the secretary or an assistant secretary of the
Issuer; 


        (c)  an
executed supplemental indenture, if any, and the documentation required to be delivered pursuant to Section 7.04; or 



        (d)  an
Officers' Certificate setting forth the form and terms of the Securities as required pursuant to Section 2.01 and 2.03, respectively and prepared in accordance
with Section 10.05. 


        The
Trustee shall have the right to decline to authenticate and deliver any Securities under this section if the Trustee, being reasonably advised by counsel, determines that such action
may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee to personal liability. 



        If
the Issuer shall establish pursuant to Section 2.03 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Issuer
shall execute and the Trustee
shall, in accordance with this Section and the Officer's Certificate with respect to such series, authenticate and deliver one or more Registered Global Securities that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary." Each Depositary designated pursuant to Section 2.03 must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. 



        Section 2.05.    Execution Of Securities.    The Securities shall be signed on behalf of the Issuer by any of
the following: the chairman of its Board of Directors, its president, any vice president, its treasurer or any assistant treasurer, chief financial officer or chief legal officer or any officer
authorized by the Board of Directors, under its corporate seal which may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such
officers. The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such 


8





 




reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee. 


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


        Section 2.06.    Certificate Of Authentication.    Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture. 


        Section 2.07.    Denomination And Date Of Securities; Payments Of Interest.    The Securities shall be issuable
as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof. The
Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine as evidenced by the
execution and authentication thereof. 


        Each
Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, which shall be specified as
contemplated by Section 2.03. 


        The
person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date
for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and
prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted
interest shall be paid to the persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the holders of Securities not less than 15 days
preceding such subsequent record date. The term "record date" as used with respect to any interest payment date (except a date for payment of defaulted
interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not
such record date is a Business Day. 


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


9







  





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


        Any
Security or Securities of any series (other than a Registered global Security, except as set forth below) may be exchanged for a Security or Securities of the same series in other
authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose
as provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the
Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding. 


        Whenever
any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. All Securities and Coupons surrendered upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer. 


        All
Securities presented for registration of transfer, exchange, redemption, conversion or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder or his attorney duly authorized in writing. 


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


        The
Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the mailing or first
publication of notice of redemption of Securities of such series to be redeemed, or (b) any Securities selected, called or being called for redemption except, in the case of any Security where
notice has been given that such Security is to be redeemed in part, the portion thereof not so to be redeemed. 


        Notwithstanding
any other provision of this Section 2.08, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global
Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary. 


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


10





 

        The
Issuer may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities, in exchange for such Registered Global Security or
Securities. 


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


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


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



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


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


        Section 2.09.    Mutilated, Defaced, Destroyed, Lost And Stolen Securities.    In case any temporary or
definitive Security shall become mutilated or defaced and shall be surrendered to the Trustee, the Issuer shall execute, and the Trustee shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security. If the Holder of any Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuer shall execute, and the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in
exchange and substitution for the lost, destroyed or wrongfully taken Security, if the applicant so requests before the Issuer has notice that the Security has been acquired by a protected purchaser,
and the applicant furnishes to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each
of them harmless and the applicant satisfies other reasonable requirements imposed by the Issuer. 



        Upon
the issuance of any substitute Security, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and its counsel) connected 


11





 




therewith. In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may
instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of
destruction, loss or wrongful taking, the applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or wrongful taking of such Security and of the ownership thereof. 


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


        Section 2.10.    Cancellation Of Securities; Destruction Thereof.    All Securities surrendered for payment,
redemption, conversion, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be canceled by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall dispose of canceled Securities held by it in accordance with the record retention policies of the Trustee in effect from time to
time and, if such cancelled certificates are destroyed, shall deliver a certificate of destruction to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. 



        Section 2.11.    Temporary Securities.    Pending the preparation of definitive Securities for any series, the
Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to
the Trustee). Temporary Securities of any series shall be issuable as registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities
of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of
such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant
to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series. 


        Section 2.12.    Computation Of Interest.    Except as otherwise specified in the Securities of a series,
interest shall be computed on the basis of a 360-day year of twelve 30-day months. 


12





 
 
 

ARTICLE 3
  COVENANTS OF THE ISSUER AND THE TRUSTEE    
  


        Section 3.01.    Payment Of Principal And Interest.    The Issuer covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on the Securities of any series may be paid at the option of the Issuer by wire transfer or mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled thereto at their last addresses as they shall appear on the registry books of the Issuer. 


        Section 3.02.    Offices For Payments, Etc.    So long as any of the Securities remain Outstanding, the Issuer
will an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may be presented for registration of transfer and for exchange as in this
Indenture provided, (c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served and (d) for Securities of each series that is
convertible, where such Securities may be presented for conversion. The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location
thereof. Unless otherwise specified in accordance with Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of Trustee as the office to be maintained by it for each
such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate Trust Office. 


        Section 3.03.    Paying Agents.    Whenever the Issuer shall appoint a paying agent other than the Trustee with
respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section, 


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


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



        (c)  pay
any such sums so held in trust by it to the Trustee upon the Trustee's written request at any time during the continuance of the failure referred to in
clause 3.03(b) above. 


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


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


        Whenever
the Issuer shall have one or more paying agents for any series of Securities, it will, on or before each due date of the principal of or interest on any Securities of such
series, deposit with the paying agent or agents for the Securities of such series a sum, by
11:00 a.m.                        time in 


13





 




immediately available funds on the payment date, sufficient to pay the principal or interest so becoming due with respect to the Securities of such series, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee in writing of any failure so to act. 


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


        Anything
in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 9.05. 


        Section 3.04.    Certificate Of The Issuer.    Within 120 days after the close of the fiscal year ended
December 31, 2002, and within 120 days after the close of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief certificate (which need not comply with
Section 10.05) from the principal executive,
financial or accounting officer of the Issuer as to his or her knowledge of the Issuer's compliance with all conditions and covenants under the Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under the Indenture). 


        Section 3.05.    Securityholders Lists.    If and so long as the Trustee shall not be the Security registrar
for the Securities of any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the holders of
the Securities of such series pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 10 days after each record date for the payment
of interest on such Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing Securities in each
year, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Issuer of any such request as of a date not more than 10 days prior to
the time such information is furnished. 


        Section 3.06.    Reports By The Issuer.    The Issuer covenants to: file with the Trustee, within
15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Issuer is not required to file with the Commission, annual reports,
information, documents and other reports pursuant to either Section 13 or Section 15(d) of the Securities Exchange Act of 1934, then the Issuer will file with the Trustee and will file
with the Commission, in accordance with rules and regulations prescribed by the Commission, such of the supplementary and periodic information, documents and reports required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed in such rules and regulations. 



        Section 3.07.    Corporate Existence.    So long as any of the Securities remain unpaid, the Issuer will at all
times (except as otherwise provided or permitted elsewhere in this Indenture) do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence;
provided however, that the Issuer shall not be required to preserve any such right if the Issuer shall determine that the preservation thereof is no longer desirable in the conduct of Issuer's
business and the loss thereof is not disadvantageous in any material respect to the Holders of the Securities. 



        Section 3.08.    Restrictions On Mergers, Sales And Consolidations.    So long as any of the Securities remain
unpaid, the Issuer will not consolidate or merge with or sell, convey or lease all or substantially all of its property to any other corporation except as permitted in Article 8 hereof. 


        Section 3.09.    Further Assurances.    From time to time whenever requested by the Trustee, the Issuer will
execute and deliver such further instruments and assurances and do such further acts as may 


14





 




be reasonably necessary or proper to carry out more effectually the purposes of this Indenture or to secure the rights and remedies hereunder of the holders of the Securities of any series. 


 
 

ARTICLE 4
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT    
  


        Section 4.01.    Event Of Default Defined; Acceleration Of Maturity; Waiver Of
Default.    "Event of Default" with respect to Securities of any series wherever used herein, means each one of the
following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): 



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


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


        (c)  default
in the performance, or breach, of any covenant or warranty of the Issuer in respect of the Securities of such series (other than a covenant or warranty in
respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), 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 Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of all series affected thereby, 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 


        (d)  a
court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 180 consecutive days; or 


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


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


        If
an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or 4.01(f) above occurs and is continuing, then, and in each and every such case, unless the principal of all of
the Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of any affected series
then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series and the
interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and 


15





 




payable. If an Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is continuing, then the principal amount of all the Securities then outstanding and interest accrued thereon, if
any, shall be and become immediately due and payable, without any notice or other action by any Holder or the Trustee, to the full extent permitted by applicable law. 


        The
foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of
such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein then and in every such case the holders of a majority in aggregate principal amount of all the then Outstanding Securities of all
such series that have been accelerated, each such series voting as a separate class, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to such series (or with
respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon. 


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


        Section 4.02.    Collection Of Indebtedness By Trustee; Trustee May Prove Debt.    The Issuer covenants that
(a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise then upon demand of the Trustee, the Issuer will pay to
the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series for principal or interest, as
the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such
further amount as shall be sufficient to 


16





 




cover the reasonable costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any
reasonable expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith. 


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


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



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


        (a)  to
file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all reasonable expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such
other obligor, 


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



        (c)  to
collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments
to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or bad faith and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.06. 


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


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


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


        Section 4.03.    Application Of Proceeds.    Any moneys collected by the Trustee pursuant to this Article in
respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal
amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid: 



        FIRST:
To the payment of costs and expenses applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and of all reasonable expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.06; 


        SECOND:
In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of
interest on the
Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be
made ratably to the persons entitled thereto, without discrimination or preference; 


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


18





 



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


        Section 4.04.    Suits For Enforcement.    In case an Event of Default has occurred, has not been waived and is
continuing, the Trustee may proceed to protect and enforce the rights vested in it by this Indenture, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law. 


        Section 4.05.    Restoration Of Rights On Abandonment Of Proceedings.    In case the Trustee shall have
proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in
every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken. 



        Section 4.06.    Limitations On Suits By Securityholder.    No holder of any Security of any series shall have
any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding (each series voting as a separate class) shall have made written request upon the Trustee
to institute such action or proceedings in respect of such Event of Default in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.09; it being understood and intended,
and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the
applicable series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or
in equity. 


        Section 4.07.    Unconditional Right Of Securityholders To Institute Certain Suits.    Notwithstanding any
other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent
of such Holder. 


        Section 4.08.    Powers And Remedies Cumulative; Delay Or Omission Not Waiver Of Default.    Except as provided
in Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders 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. 


19





 



        No
delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by
law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders. 


        Section 4.09.    Control By Securityholders.    The Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions
of this Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said direction. 


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


        Section 4.10.    Waiver Of Past Defaults.    Prior to a declaration of the acceleration of the maturity of the
Securities of any series as provided in Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding (each such series voting
as a separate class) may on behalf of the Holders of all the Securities of such series waive an existing default or Event of Default, except a default in the payment of Principal of or interest on any
Security as specified in clauses (a) or (b) of Section 4.01 or in respect of a covenant or provision hereof which cannot be modified or amended without the consent of each Holder
affected as provided in. In the case of any such waiver, the Issuer, the Trustee and the Holders of the Securities of each series affected shall be restored to their former positions and rights
hereunder, respectively. 


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



        Section 4.11.    Trustee To Give Notice Of Default, But May Withhold In Certain Circumstances.    The Trustee
shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to Responsible Officers of the Trustee
which have occurred with respect to such series, such notice to be transmitted within 90 days after the occurrence thereof, unless such defaults shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event
of Default); provided that, except in the case of default in the payment of the Principal of or interest on any of the Securities of such series, or in
the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series. 


20





 



        Section 4.12.    Right Of Court To Require Filing Of Undertaking To Pay Costs.    All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, to any suit instituted by a Holder pursuant to
Section 4.07. 


 
 

ARTICLE 5
  CONCERNING THE TRUSTEE    
  



        Section 5.01.    Duties And Responsibilities Of The Trustee; During Default; Prior To Default.    With respect
to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an
Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. 


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



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


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




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



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


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



        (3)  the
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the holders
relating to the time, 



21





 





method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. 




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


        The
provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act of 1939. 



        Whether
or not therein expressly 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 5.01. 


        Section 5.02.    Certain Rights Of The Trustee.    In furtherance of and subject to the Trust Indenture Act of
1939, and subject to Section 5.01: 


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


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


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


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



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


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



        (g)  the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its
employ and the 


22





 




Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; and 



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


        Section 5.03.    Trustee Not Responsible For Recitals, Disposition Of Securities Or Application Of Proceeds
Thereof.    The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof. 


        Section 5.04.    Trustee And Agents May Hold Securities; Collections, Etc.    The Trustee or any agent of the
Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may
otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent. 



        Section 5.05.    Moneys Held By Trustee.    All moneys received by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on
any moneys received by it hereunder. 


        Section 5.06.    Compensation And Indemnification Of Trustee And Its Prior Claim.    The Issuer covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed in writing from time to time by the Issuer and the Trustee (which shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise
from its negligence or bad faith. The Issuer also covenants and agrees to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the premises, except to the extent such loss, liability or expense is due to the negligence or bad faith of the Trustee or such
predecessor Trustee. The obligations of the Issuer under
this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee. Such additional indebtedness shall be a
senior claim and lien to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular
Securities, and the Securities are hereby subordinated to such senior claim. The parties agree that if the Trustee renders services following an Event of Default under Section 4.01(d) or (e),
compensation for such services is intended to constitute administrative expense under any bankruptcy law. 


        Section 5.07.    Right Of Trustee To Rely On Officers' Certificate, Etc.    Subject to Sections 5.01 and 5.02,
whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, 


23





 




in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate,
in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof. 


        Section 5.08.    Persons Eligible For Appointment As Trustee.    The Trustee for each series of Securities
hereunder shall at all times be a corporation which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939 and which has, or is a Wholly-Owned
Subsidiary, directly or indirectly of a parent company which has, a combined capital and surplus of $50,000,000. If such corporation or holding company publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal, State or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus
of such corporation or holding company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. 


        Section 5.09.    Resignation And Removal; Appointment Of Successor Trustee.    (c) The Trustee, or any
trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor Trustee shall have been so appointed with respect
to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of
Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor Trustee. 


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



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



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


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




then,
in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or, subject to
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor 


24





 


trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. 


        (b)  The
Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding may at any time remove the Trustee with respect to
Securities of such series and appoint a successor Trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Issuer
the evidence provided in Section 6.01 of the action in that regard taken by the Securityholders. 


        (c)  Any
resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the
provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10. 


        Section 5.10.    Acceptance Of Appointment By Successor.    Any successor Trustee appointed as provided in
Section 5.09 shall execute and deliver to the Issuer and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as Trustee for such series hereunder; but, nevertheless, on the written
request of the Issuer or of the successor Trustee, upon payment of its charges then unpaid, the Trustee ceasing to act shall, subject to Section 5.06, pay over to the successor Trustee all
moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor Trustee all such rights, powers, duties and obligations. Upon request of any such
successor Trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 5.06. 


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


        Upon
acceptance of appointment by any successor Trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of
any series for which such successor Trustee is acting as Trustee at their last addresses as they shall appear in the Security register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09. If the Issuer fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Issuer. 


        Section 5.11.    Merger, Conversion, Consolidation Or Succession To Business Of Trustee.    Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions 


25





 




of Section 5.08, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. 


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


        Section 5.12.
Reports By The Trustee. 


        (a)  On
May 15, 2002, and on or before May 15 in every year thereafter, so long as any Securities are Outstanding hereunder and as required by the Trust
Indenture Act of 1939, the Trustee shall transmit to the Securityholders and the Issuer, as hereinafter in this Section 5.12 provided, a brief report dated as of the preceding March 15
with respect to: 



        (i)    its
eligibility under Section 5.08, or in lieu thereof, if to the best of its knowledge it has continued to be eligible under such Section, a written statement to
such effect; and 


        (ii)  any
action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which in its opinion materially affects
the Securities, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 4.11. 




        (b)  Reports
pursuant to this Section 5.12 shall be transmitted by mail to all holders of Securities as the names and addresses of such holders appear upon the
registry books of the Issuer at the expense of the Issuer. 


 
 

ARTICLE 6
  CONCERNING THE SECURITYHOLDERS    
  


        Section 6.01.    Evidence Of Action Taken By Securityholders.    Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this
Article. 


        Section 6.02.    Proof Of Execution Of Instruments And Of Holding Of Securities; Record Date.    Subject to
Sections 5.01 and 5.02, the execution of any instrument by a Securityholder or his agent or proxy may be proved by the certificate of any notary public or other officer authorized to take
acknowledgment of deeds, that the Person executing such instrument acknowledged to such notary public or other such officer the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary public or other officer. Where such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association
or partnership, as the case may be, or by any other Person acting in a representative capacity, such 


26





 




certificate or affidavit shall also constitute sufficient proof of such Person's authority. The holding of Securities shall be proved by the Security register or by a certificate of the registrar
thereof. The Issuer may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to any action referred to in Section 6.01,
which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date
shall be entitled to so vote or give such consent or revoke such vote or consent. 


        Section 6.03.    Holders To Be Treated As Owners.    Prior to due presentment of a Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on
account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Security. 


        Section 6.04.    Securities Owned By Issuer Deemed Not Outstanding.    In determining whether the Holders of
the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities as to which the Trustee
has received
written notice are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any
such determination. 


        Section 6.05.    Right Of Revocation Of Action Taken.    At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of
any 


27





 




Securities issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action. 


 
 

ARTICLE 7
  SUPPLEMENTAL INDENTURES    
  


        Section 7.01.    Supplemental Indentures Without Consent Of Securityholders.    The Issuer, when authorized by
a resolution of its Board of Directors certified to the Trustee, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the
following purposes: 


        (a)  to
evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article 8; 


        (b)  to
cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the
Board of Directors may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect; 



        (c)  to
establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; 


        (d)  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 5.10; 


        (e)  to
comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act of 1939 or any similar federal
statute hereafter enacted; 


        (f)    to
provide for uncertificated or Unregistered Securities and to make all appropriate changes for such purpose; 


        (g)  to
make any change that does not adversely affect the rights of any Holder; 


        (h)  as
provided by or pursuant to a board resolution or indenture supplemental hereto establishing the terms of one or more series of Securities; 


        (i)    to
add to the covenants of the Issuer such new covenants, restrictions, conditions or provisions as its Board of Directors shall consider to be for the protection of the
Holders of Securities, and with respect to which the Trustee has received an Opinion of Counsel to a similar effect, and to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of Default; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement
upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default; 


28





 



        (j)    to
make any change so long as no Securities are Outstanding; 


        (k)  to
make provision with respect to conversion rights of the Holders of Securities; or 


        (l)    to
provide for the issuance under this Indenture of Securities of a series in coupon form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities with the Securities issued hereunder in fully registered form and to make all appropriate changes for such purpose.` 


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



        Any
supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 7.02. 


        Section 7.02.    Supplemental Indentures With Consent Of Securityholders.    With the consent (evidenced as
provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution of its Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall without the consent of each Holder
affected thereby: 



        (i)    change
the stated maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder's Security; 


        (ii)  reduce
the Principal thereof or the rate of interest thereon, or any premium payable with respect thereto; 


        (iii)  change
any place of payment where, or the currency in which, any Security or any premium or the interest thereon is payable; 


        (iv)  change
the provisions for calculating the optional redemption price, including the definitions relating thereto; 


        (v)  make
any change to Section 4.07 or 4.10 (except to include other provisions subject to Section 4.10); 



        (vi)  reduce
the percentage in principal amount of outstanding Securities of the relevant series the consent of whose Holders is required for any such supplemental indenture,
for any waiver of compliance with any provisions of this Indenture or any Defaults and their consequences provided for in this Indenture; 


        (vii)  alter
or impair the right to convert any Security at the rate and upon the terms provided in Article 12; 


        (viii)  waive
a default in the payment of Principal of or interest on any Security of such Holder (except pursuant to a rescission of acceleration pursuant to
Section 4.01); 


        (ix)  adversely
affect the rights in any material respect of such Holder under any mandatory redemption or repurchase provision or any right of redemption or repurchase at
the option of such Holder; 



29







  




        (x)  modify
any of the provisions of this Section 7.02, 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; or 


        (xi)  change
or waive any provision that, pursuant to a board resolution or indenture supplemental hereto establishing the terms of one or more series of Securities, is
prohibited to be so changed or waived. 




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


        Upon
the written request of the Issuer, accompanied by a copy of a resolution of the Board of Directors certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by
Section 6.01, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. 


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


        Promptly
after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Issuer shall mail a notice thereof by first class
mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. 


        Neither
the Issuer nor any of its Subsidiaries will, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder of any
Securities for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Securities unless such consideration is offered to be paid or agreed
to be paid to all Holders of the Securities that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. 



        Section 7.03.    Effect Of Supplemental Indenture.    Upon the execution of any supplemental indenture pursuant
to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects
to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and
all purposes. 


        Section 7.04.    Documents To Be Given To Trustee.    The Trustee, subject to the provisions of Sections 5.01
and 5.02, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 7 complies with the applicable
provisions of this Indenture. 


30





 



        Section 7.05.    Notation On Securities In Respect Of Supplemental Indentures.    Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any
matter provided for by such supplemental indenture or as to any action taken at any such meeting. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by
the Trustee and delivered in exchange for the Securities of such series then outstanding. 


 
 

ARTICLE 8
  CONSOLIDATION, MERGER, SALE OR CONVEYANCE    
  


        Section 8.01.    Issuer May Consolidate, Etc., On Certain Terms.    Subject to the provisions of
Section 8.02, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Issuer with or into any other Person or Persons (whether or not
affiliated with the
Issuer), or successive consolidations or mergers in which the Issuer or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease (or successive sales,
conveyances or leases) of all or substantially all of the property of the Issuer, to any other Person (whether or not affiliated with the Issuer), authorized to acquire and operate the same and that
shall be organized under the laws of the United States of America, any state thereof or the District of Columbia upon any such consolidation, merger, sale, conveyance or lease, the due and punctual
payment of the principal of and premium, if any, and interest on all of the Securities, according to their tenor and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the
Person (if other than the Issuer) formed by such consolidation, or into which the Issuer shall have been merged, or by the Person that shall have acquired or leased such property, and such
supplemental indenture shall provide for conversion rights (if applicable). 


        Section 8.02.    Successor Corporation Substituted.    In case of any such consolidation, merger, sale,
conveyance or lease and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by
the Issuer, such successor Person shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein as the party of this first part. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the name of Digital River, Inc. any or all of the Securities, issuable hereunder that theretofore shall not have
been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor Person instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Securities that previously shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities that such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or lease, the Person named as the "Issuer" in the first paragraph of
this Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 8 may be dissolved, wound up and liquidated at any time thereafter and such
Person shall be released from its liabilities as obligor and maker of the Securities and from its obligations under this Indenture. 


31





 



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


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


 
 

ARTICLE 9
  DISCHARGE OF INDENTURE    
  


        Section 9.01.    Defeasance Within One Year Of Payment.    Except as otherwise provided in this
Section 9.01, the Issuer may terminate its obligations under the Securities of any series and this Indenture with respect to Securities of such series if: 



        (i)    all
Securities of such series previously authenticated and delivered (other than destroyed, lost or wrongfully taken Securities of such series that have been replaced or
Securities of such series that are paid pursuant to Section 3.01 or Securities of such series for whose payment money or securities have theretofore been held in trust and thereafter repaid to
the Issuer, as provided in Section 9.05) have been delivered to the Trustee for cancellation and the Issuer has paid all sums payable by it hereunder; or 


        (ii)  (A)
the Securities of such series mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee
for giving the notice of redemption, (B) the Issuer irrevocably deposits in trust with the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose,
money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay Principal of and interest on the Securities of such series to maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, and (C) the Issuer delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with. 




        With
respect to the foregoing clause (i), only the Issuer's obligations under Sections 5.06 and 9.05 in respect of the Securities of such series shall survive. With respect to the
foregoing clause (ii), only the Issuer's obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 in respect of the Securities of such series shall survive until such Securities of
such series are no longer outstanding. Thereafter, only the Issuer's obligations in Sections 5.06 and 9.05 in respect of the Securities of such series shall survive. After any such irrevocable
deposit, the Trustee shall acknowledge in writing the discharge of the Issuer's obligations under the Securities of such series and this Indenture with respect to the Securities of such series except
for those surviving obligations specified above. 


        Section 9.02.    Defeasance.    Except as provided below, the Issuer will be deemed to have paid and will be
discharged from any and all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Issuer, shall execute instruments in form and substance satisfactory to 


32





 


the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied: 



        (i)    the
Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely to, Holders of the Securities of
such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely
of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued
interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; 


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


        (iii)  no
default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; 


        (iv)  the
Issuer shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from or ruling published by the Internal Revenue Service to
the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Issuer's exercise of its option under this
Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not
occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change in law; and 


        (v)  the
Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein
relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. 




        The
Issuer's obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 with respect to the Securities of such series shall survive until such Securities are no longer
outstanding. Thereafter, only the Issuer's obligations in Sections 5.06 and 9.05 shall survive. 


        Section 9.03.    Covenant Defeasance.    The Issuer may omit to comply with any term, provision or condition
set forth in Section 3.04 (or any other specific covenant relating to the Securities of any series provided for in a board resolution or supplemental indenture pursuant to Section 2.03
which may by its terms be defeased pursuant to this Section 9.03), and such omission shall be deemed not to be an Event of Default under clause (c) of Section 4.01, with respect
to the outstanding Securities of such series if: 



        (i)    the
Issuer has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the
Principal of and interest, if any, on the Securities of such series, money or U.S. Government Obligations or a combination thereof in an amount sufficient (unless such funds consist solely of money,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; 



33





 

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


        (iii)  no
default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; 


        (iv)  the
Issuer has delivered to the Trustee an Opinion of Counsel to the effect that such Holders will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit
and defeasance had not occurred; and 


        (v)  the
Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein
relating to the covenant defeasance contemplated by this Section 9.03 of the Securities of such series have been complied with. 




        Section 9.04.    Application Of Trust Money.    Subject to Section 9.05, the Trustee or Paying Agent
shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 9.01, 9.02 or 9.03, as the case may be, in respect of the Securities of any series and shall apply
the deposited money and the proceeds from deposited U.S. Government Obligations in accordance with the Securities of such series and this Indenture to the payment of Principal of and interest on the
Securities of such series; but such money need not be segregated from other funds except to the extent required by law. The Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.01, 9.02 or 9.03, as the case may be, or the principal and interest received in respect
thereof, other than any such tax, fee or other charge that by law is for the account of the Holders. 


        Section 9.05.    Repayment To Issuer.    Subject to Sections 5.06, 9.01, 9.02 and 9.03, the Trustee and the
Paying Agent shall promptly pay to the Issuer upon request set forth in an Officers' Certificate any money held by them at any time and not required to make payments hereunder and thereupon shall be
relieved from all liability with respect to such money. Subject to applicable escheat or abandoned property laws, the Trustee and the Paying Agent shall pay to the Issuer upon written request any
money held by them and required to make payments hereunder under this Indenture that remains unclaimed for two years or such other shorter period set forth in applicable escheat or abandoned or
unclaimed property law; provided that the Trustee or such Paying Agent before being required to make any payment may cause to be published at the
expense of the Issuer once in an Authorized Newspaper or mail to each Holder entitled to such money at such Holder's address (as set forth in the register) notice that such money remains unclaimed and
that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the
Issuer. After payment to the Issuer, Holders entitled to such money must look to the Issuer for payment as unsecured general creditors unless an abandoned property law designates another Person, and
all liability of the Trustee and such Paying Agent with respect to such money shall cease. 


 
 

ARTICLE 10
  MISCELLANIOUS PROVISIONS    
  


        Section 10.01.    Incorporators, Stockholders, Officers And Directors Of Issuer Exempt From Individual
Liability.    No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer, director or employee, as such, of the Issuer or of any successor, either
directly or through the Issuer or any 


34





 


successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the holders thereof and as part of the consideration for the issue of the Securities. 


        Section 10.02.    Provisions Of Indenture For The Sole Benefit Of Parties And Securityholders.    Nothing in
this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of
the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of
the parties hereto and their successors and of the Holders of the Securities. 


        Section 10.03.    Successors And Assigns Of Issuer Bound By Indenture.    All the covenants, stipulations,
promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not. 



        Section 10.04.    Notices And Demands On Issuer, Trustee And Securityholders.    Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Digital River, Inc. at
9625 W. 76th Street, Suite 150, Eden Prairie, Minnesota 55344, Attention: Chief Financial Officer. Any notice, direction, request or demand by the Issuer or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made at the Corporate Trust Office. 


        Where
this Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. 


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


        Section 10.05.    Officers' Certificates And Opinions Of Counsel; Statements To Be Contained Therein.    Upon
any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be
furnished. 


        Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement 


35





 




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


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


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


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


        Section 10.06.    Payments Due On Saturdays, Sundays And Holidays.    If the date of maturity of interest on or
principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date. 


        Section 10.07.    Conflict Of Any Provision Of Indenture With Trust Indenture Act Of 1939.    If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939 (an "incorporated provision"), such incorporated provision shall control. 


        Section 10.08.                        Law To Govern.    This Indenture and each Security
shall be deemed to be a
contract under the laws of the State of                        , and for all purposes shall be construed in accordance with the
laws of such State, except as may otherwise be required by mandatory provisions
of law. 


        Section 10.09.    Counterparts.    This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one and the same instrument. 


        Section 10.10.    Effect Of Headings.    The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof. 


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ARTICLE 11
  REDEMPTION OF SECURITIES AND SINKING FUNDS    
  


        Section 11.01.    Applicability Of Article.    The provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series. 


        Section 11.02.    Notice Of Redemption; Partial Redemptions.    Notice of redemption to the Holders of
Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least
20 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the registry
books. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other
Security of such series. 


        The
notice of redemption to each such Holder shall specify the CUSIP numbers of such Securities to be redeemed, the principal amount of each Security of such series held by such Holder
to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption
is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued. 


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


        By
10:00 a.m. (                        City time) on the redemption date specified in the notice of redemption given as provided
in this Section, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.03) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less
than all the outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers' Certificate
stating the aggregate principal amount of Securities to be redeemed. 


        In
the case of the redemption of all of the Securities of a series outstanding, the Issuer shall notify the Trustee in writing of the redemption date 45 days (unless a shorter
period shall be satisfactory to the Trustee) prior to the redemption date. 


        If
less than all the Securities of a series are to be redeemed, the Trustee shall select, pro rata or by lot or in such manner as it shall deem appropriate and fair, Securities of such
Series to be redeemed in whole or in part. Securities of a series may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial
redemption, the principal amount thereof to be 


37





 




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



        Section 11.03.    Payment Of Securities Called For Redemption.    If notice of redemption has been given as
above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with
interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities
shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said
notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record
date subject to the terms and provisions of Section 2.04 hereof. 


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


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



        Section 11.04.    Exclusion Of Certain Securities From Eligibility For Selection For Redemption.    Securities
shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled by or under direct or indirect common control
with the Issuer. 


        Section 11.05.    Mandatory And Optional Sinking Funds.    The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund payment date." 



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


38





 




series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in such Securities. 


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



        If
the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding
sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request in writing) with respect to the Securities of any particular series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If
such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided
in Section 11.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested
in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities of any series which are identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer shall be excluded from Securities of such series eligible for selection for redemption. The Issuer or the
Trustee, in the name and at the expense of the Issuer (if the Issuer shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in the
manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of such series in part at the option of the Issuer. The amount of any
sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, 


39






 




together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity. 


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


        The
Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities for such series by operation of
the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default if the Trustee has received written notice thereof at least three Business
Days prior to any payment hereunder except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, if the Trustee has received written notice of such default or Event of
Default at least three Business Days prior to any payment hereunder, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article 4 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in Section 4.10 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any
year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities. 


        Section 11.06.    Conversion Arrangement On Call For Redemption.    In connection with any redemption of
Securities, the Issuer shall deposit the amount due in connection with such redemption as required by Section 11.02 or it may arrange for the purchase and conversion of any Securities called
for redemption by an agreement with one or more investment bankers or other purchasers to purchase such Securities and to make the deposit required of it by Section 11.02 on its behalf by
paying to the Trustee or the Paying Agent in trust for the Securityholders, on or before
10:00 a.m.                        time on the redemption date, an amount no less than the redemption price,
together with interest, if any, accrued to the redemption date of such Securities, in immediately available funds. Notwithstanding anytime to the contrary contained in this Article 11, the
obligation of the Issuer to pay the redemption price of such Securities, including all accrued interest, if any, shall be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Securities not duly surrendered for conversion by the holders thereof may, at the option of the Issuer, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such holders and (notwithstanding anything to the contrary contained in Article 12) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the last day on which Securities of such series called for redemption may be converted in accordance with this Indenture and the terms of such Securities,
subject to payment of the above amount aforesaid. The Trustee or the Paying Agent shall hold and pay to the Securityholders whose Securities are selected for redemption any such amount paid to it in
the same manner as it would moneys deposited with it by the Issuer for the redemption of Securities. Without the Trustee's and the Paying Agent's prior written consent, no arrangement between the
Issuer and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth
in this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Issuer and such purchasers, including the costs and expenses incurred by the Trustee and the Paying Agent in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. 


40





 


 
 

ARTICLE 12
  SUBORDINATION OF SECURITIES    
  


        Section 12.01.    Agreement Of Subordination.    The Issuer covenants and agrees, and each holder of Securities
issued hereunder by his acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 12; and each Securityholder, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. 


        The
payment of the principal of, premium, if any, and interest on all Securities issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and
subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter incurred. 


        No
provision of this Article 12 shall prevent the occurrence of any default or Event of Default hereunder. 



        Section 12.02.    Agreement Of Subordination.    No payment shall be made with respect to the principal of and
all other amounts payable under the Securities (including, but not limited to, the redemption price with respect to the Securities submitted for redemption in accordance with Section 11.02),
except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 12.05, if: 


        (a)  a
default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Senior Indebtedness occurs and is continuing (or, in the case
of Senior Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such
Senior Indebtedness) (a "Payment Default"), unless and until such Payment Default shall have been cured or waived or shall have ceased to exist; or 


        (b)  a
default, other than a Payment Default, on any Designated Senior Indebtedness occurs and is continuing that then permits holders of such Designated Senior Indebtedness
to accelerate its maturity and the Trustee receives a notice of the default (a "Payment Blockage Notice") from a holder of Designated Senior Indebtedness, a representative of Designated Senior
Indebtedness or the Issuer (a "Non-Payment Default"). 


        If
the Trustee receives any Payment Blockage Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for purposes of this
Section 12.02 unless and until (A) at
least 365 days shall have elapsed since the initial effectiveness of the immediately prior Payment Blockage Notice and (B) all scheduled payments of principal on the Securities that have
come due have been paid in full in cash. No Non-Payment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Payment Blockage Notice. 


        The
Issuer may and shall resume payments on and distributions in respect of the Securities upon the earlier of: 



        (i)    in
the case of a Payment Default, the date upon which any such Payment Default is cured or waived or ceases to exist, or 


        (ii)  in
the case of a Non-Payment Default, the earlier of (A) the date upon which such default is cured or waived or ceases to exist or
(B) 179 days after the applicable Payment Blockage Notice is received if the maturity of such Designated Senior Indebtedness has not been accelerated (or in the case of any lease,
179 days after notice is received if the Issuer has not received notice that the lessor under such lease has exercised its right to terminate the lease or require the Issuer to make an
irrevocable offer to terminate the lease following an event of default thereunder), 



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unless
this Article 12 otherwise prohibits the payment or distribution at the time of such payment or distribution. 



        Upon
any payment by the Issuer, or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up
or liquidation or reorganization of the Issuer, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior
Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, or payment thereof in accordance with its terms provided for in cash or other
payment satisfactory to the holders of such Senior Indebtedness before any payment is made on account of the principal or any other amounts payable in respect of the Securities (except payments made
pursuant to Article 9 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization); and upon any
such dissolution or winding up or liquidation or reorganization of the Issuer or bankruptcy, insolvency, receivership or other proceeding, any payment by the Issuer, or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities, to which the holders of the Securities or the Trustee would be entitled, except for the provisions of this Article 12,
shall (except as aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the holders of the
Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, or as
otherwise required by law or a court order) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full, in cash or other payment satisfactory to the holders of
such Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the holders of the
Securities or to the Trustee. 


        For
purposes of this Article 12, the words, "cash, property or securities" shall not be deemed to include shares of stock of the Issuer as reorganized or readjusted, or securities
of the Issuer or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 12 with
respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any,
resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness (other than leases which are not assumed by the Issuer or the new corporation, as
the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Issuer with, or the merger of the Issuer into, another
corporation or the liquidation or dissolution of the Issuer following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided for in Article 8 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 12.02 if such other
corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 8. 


        In
the event of the acceleration of the Securities because of an Event of Default, no payment or distribution shall be made to the Trustee or any holder of Securities in respect of the
principal or any other amounts payable in respect of the Securities (including, but not limited to, the redemption price with respect to the Securities submitted for redemption in accordance with
Section 11.02), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 12.05, until all Senior Indebtedness has been paid in full
in cash or other payment satisfactory to the holders of Senior Indebtedness or such acceleration is rescinded in accordance with the terms of 


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this Indenture. If payment of the Securities is accelerated because of an Event of Default, the Issuer shall promptly notify holders of Senior Indebtedness of the acceleration. 


        In
the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities
(including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 12.02, shall be received by the Trustee or the holders of the Securities
before all Senior Indebtedness is paid in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, or provision is made for such payment thereof in accordance with its
terms in cash or other payment satisfactory to the holders of such Senior Indebtedness, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to
the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by the Issuer, for application to the payment of any Senior Indebtedness remaining unpaid
to the extent necessary to pay all Senior Indebtedness in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness. 


        Nothing
in this Section 12.02 shall apply to claims of, or payments to, the Trustee under or pursuant to. This Section 12.02 shall be subject to the further provisions of
Section 12.05. 


        Section 12.03.    Subrogation Of Securities.    Subject to the payment in full of all Senior Indebtedness, the
rights of the holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the holders of the Securities or the Trustee would be entitled except for the provisions of this
Article 12, and no payment over pursuant to the provisions of this Article 12, to or for the benefit of the holders of Senior Indebtedness by holders of the Securities or the Trustee,
shall, as between the Issuer, its creditors other than holders of Senior Indebtedness, and the holders of the Securities, be deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article 12 are and are intended solely for the purpose of defining the relative rights of the holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand. 


        Nothing
contained in this Article 12 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Issuer, its creditors other than the
holders of Senior Indebtedness, and the holders of the Securities, the obligation of the Issuer, which is absolute and unconditional, to pay to the holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders
of the Securities and creditors of the Issuer other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 12 of the holders of Senior Indebtedness in respect of
cash, property or securities of the Issuer received upon the exercise of any such remedy. 


        Upon
any payment or distribution of assets of the Issuer referred to in this Article 12, the Trustee, subject to the provisions of Section 5.01, and the holders of the
Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, delivered to 


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the Trustee or to the holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 12. 



        Section 12.04.    Authorization By Securityholders.    Each holder of a Security by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 12 and appoints the Trustee his
attorney-in-fact for any and all such purposes. 


        Section 12.05.    Notice To Trustee.    The Issuer shall give promptly written notice to a Responsible Officer
of the Trustee of any fact known to the Issuer which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this
Article 12. Notwithstanding the provisions of this Article 12 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article 12, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee from the Issuer or a holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the provisions of Section 5.01, shall be entitled in all respects to assume that no such facts exist;  provided that if on a
date not fewer than three Business Days prior to the date upon which by the terms hereof any such monies may become payable for
any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Security) the Trustee shall not have received, with respect to such monies, the
notice provided for in this Section 12.05, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date. 


        Notwithstanding
anything to the contrary hereinbefore set forth, nothing shall prevent any payment by the Issuer or the Trustee to the Securityholders of monies in connection with a
redemption of Securities if (i) notice of such redemption has been given pursuant to Article 11 or Section 9.01 hereof prior to the receipt by the Trustee of written notice as
aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the redemption date. 


        The
Trustee conclusively shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this
Article 12, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article 12, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. 


        Section 12.06.    Trustee's Relation To Senior Indebtedness.    The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article 12 in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior Indebtedness and nothing elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder. 


        With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this
Article 12, and no 


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implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or deliver to holders of Securities, the Issuer or any other Person
money or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article 12 or otherwise. 


        Section 12.07.    No Impairment Of Subordination.    No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Issuer with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charge with. 


        Senior
Indebtedness may be created, renewed, refinanced, replaced, deferred, refunded, amended, modified, supplemented or extended and holders of Senior Indebtedness may exercise any
rights under any instrument creating or evidencing such Senior Indebtedness, including, without limitation, any waiver of default thereunder, without any notice to or consent from the holders of the
Securities or any coupon or the Trustee. No compromise, alteration, amendment, modification, extension, renewal or other change of or waiver, consent or other action in respect of, any liability or
obligation under or in respect of the Senior Indebtedness or any terms or conditions of any instrument creating or evidencing such Senior Indebtedness shall in any way alter or affect any of the
provisions of this Article 12 or the subordination of the Securities and coupons provided thereby. 


        Section 12.08.    Rights Of Trustee.    Nothing in this Article 12 shall apply to claims of or payments
to, the Trustee pursuant to Section 5.06 or 9.04. 


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        IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the first date
written above. 



	 	 	 	 	DIGITAL RIVER, INC.


	

 	
 	

 	
 	

By:	

 Name:

Title:
	
[CORPORATE SEAL]
	
 Attest:
	

By:	
 	


	

 	
 	

 	
 	
[TRUSTEE]


	

 	
 	

 	
 	

By:	


	
[CORPORATE SEAL]
	
 Attest:
	

By:	
 	






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EXHIBIT 4.6



TABLE OF CONTENTS


W I T N E S S E T H

ARTICLE 1 DEFINITIONS

ARTICLE 2 SECURITIES


ARTICLE 3 COVENANTS OF THE ISSUER AND THE TRUSTEE

ARTICLE 4 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


ARTICLE 5 CONCERNING THE TRUSTEE

ARTICLE 6 CONCERNING THE SECURITYHOLDERS

ARTICLE 7 SUPPLEMENTAL INDENTURES


ARTICLE 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE

ARTICLE 9 DISCHARGE OF INDENTURE

ARTICLE 10 MISCELLANIOUS PROVISIONS


ARTICLE 11 REDEMPTION OF SECURITIES AND SINKING FUNDS

ARTICLE 12 SUBORDINATION OF SECURITIES