exv4w2






Exhibit 4.2




 





THERMO FISHER SCIENTIFIC INC.

as Issuer




AND



[                                        ]

as Trustee



INDENTURE



Dated as of [                     ]



SUBORDINATED DEBT SECURITIES



 





 









 





Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I.

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	Section 1.01 Definitions of Terms
	 	 	1	 
	ARTICLE II.

	 
	 	 	 	 
	ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND


EXCHANGE OF SECURITIES

	 
	 	 	 	 
	Section 2.01 Designation and Terms of Securities
	 	 	9	 
	Section 2.02 Form of Securities and Trustee’s Certificate
	 	 	12	 
	Section 2.03 Denominations; Provisions for Payment
	 	 	14	 
	Section 2.04 Execution and Authentications
	 	 	16	 
	Section 2.05 Transfer and Exchange
	 	 	16	 
	Section 2.06 Temporary Securities
	 	 	24	 
	Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities
	 	 	24	 
	Section 2.08 Cancellation
	 	 	25	 
	Section 2.09 Benefits of Indenture
	 	 	25	 
	Section 2.10 Authenticating Agent
	 	 	25	 
	Section 2.11 Global Securities
	 	 	26	 
	Section 2.12 CUSIP Numbers
	 	 	26	 
	Section 2.13 Securities Denominated in Foreign Currencies
	 	 	27	 
	Section 2.14 Wire Transfers
	 	 	27	 
	Section 2.15 Designated Currency
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III.

	 
	 	 	 	 
	REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

	 
	 	 	 	 
	Section 3.01 Redemption
	 	 	28	 
	Section 3.02 Notice of Redemption
	 	 	28	 
	Section 3.03 Payment Upon Redemption
	 	 	29	 
	Section 3.04 Sinking Fund
	 	 	30	 
	Section 3.05 Satisfaction of Sinking Fund Payments with Securities
	 	 	30	 
	Section 3.06 Redemption of Securities for Sinking Fund
	 	 	30	 
	 
	 	 	 	 
	ARTICLE IV.

	 
	 	 	 	 
	CERTAIN COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Principal, Premium and Interest
	 	 	31	 
	Section 4.02 Maintenance of Office or Agency
	 	 	31	 






i









 






	 	 	 	 	 
	 	 	Page
	Section 4.03 Paying Agents
	 	 	31	 
	Section 4.04 Statement by Officers as to Default
	 	 	32	 
	Section 4.05 Appointment to Fill Vacancy in Office of Trustee
	 	 	32	 
	Section 4.06 Existence
	 	 	32	 
	 
	 	 	 	 
	ARTICLE V.

	 
	 	 	 	 
	SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND 

THE TRUSTEE

	 
	 	 	 	 
	Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders
	 	 	33	 
	Section 5.02 Preservation of Information; Communications with Securityholders
	 	 	33	 
	Section 5.03 Reports by the Company
	 	 	33	 
	Section 5.04 Reports by the Trustee
	 	 	34	 
	 
	 	 	 	 
	ARTICLE VI.

	 
	 	 	 	 
	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON 

EVENT OF DEFAULT

	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	34	 
	Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	36	 
	Section 6.03 Application of Funds Collected
	 	 	38	 
	Section 6.04 Limitation on Suits
	 	 	38	 
	Section 6.05 Rights and Remedies Cumulative; Delay or Omission not Waiver
	 	 	39	 
	Section 6.06 Control by Securityholders
	 	 	39	 
	Section 6.07 Undertaking to Pay Costs
	 	 	40	 
	Section 6.08 Waiver of Usury, Stay Or Extension Laws
	 	 	40	 
	 
	 	 	 	 
	ARTICLE VII.

	 
	 	 	 	 
	CONCERNING THE TRUSTEE

	 
	 	 	 	 
	Section 7.01 Certain Duties and Responsibilities of Trustee
	 	 	40	 
	Section 7.02 Certain Rights of Trustee
	 	 	42	 
	Section 7.03 Trustee not Responsible for Recitals or Issuance of Securities
	 	 	43	 
	Section 7.04 May Hold Securities
	 	 	43	 
	Section 7.05 Funds Held in Trust
	 	 	43	 
	Section 7.06 Compensation and Reimbursement
	 	 	44	 
	Section 7.07 Reliance on Officer’s Certificate
	 	 	45	 
	Section 7.08 Disqualification; Conflicting Interests
	 	 	45	 
	Section 7.09 Corporate Trustee Required; Eligibility
	 	 	45	 
	Section 7.10 Resignation and Removal; Appointment of Successor
	 	 	45	 
	Section 7.11 Acceptance of Appointment By Successor
	 	 	47	 
	Section 7.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	48	 
	Section 7.13 Preferential Collection of Claims Against the Company
	 	 	48	 






ii









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VIII.

	 
	 	 	 	 
	CONCERNING THE SECURITYHOLDERS

	 
	 	 	 	 
	Section 8.01 Evidence of Action by Securityholders
	 	 	48	 
	Section 8.02 Proof of Execution by Securityholders
	 	 	50	 
	Section 8.03 Who May be Deemed Owners
	 	 	50	 
	Section 8.04 Certain Securities Owned by Company Disregarded
	 	 	50	 
	Section 8.05 Actions Binding on Future Securityholders
	 	 	51	 
	 
	 	 	 	 
	ARTICLE IX.

	 
	 	 	 	 
	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 
	Section 9.01 Supplemental Indentures Without the Consent of Securityholders
	 	 	51	 
	Section 9.02 Supplemental Indentures with Consent of Securityholders
	 	 	53	 
	Section 9.03 Effect of Supplemental Indentures
	 	 	54	 
	Section 9.04 Securities Affected by Supplemental Indentures
	 	 	54	 
	Section 9.05 Execution of Supplemental Indentures
	 	 	54	 
	 
	 	 	 	 
	ARTICLE X.

	 
	 	 	 	 
	SUCCESSOR

	 
	 	 	 	 
	Section 10.01 Consolidation, Merger and Sale of Assets
	 	 	55	 
	Section 10.02 Successor Person Substituted
	 	 	55	 
	Section 10.03 Other Additional Amounts
	 	 	56	 
	 
	 	 	 	 
	ARTICLE XI.

	 
	 	 	 	 
	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 11.01 Applicability of Article
	 	 	57	 
	Section 11.02 Satisfaction and Discharge of Indenture
	 	 	57	 
	Section 11.03 Defeasance and Discharge of Obligations; Covenant Defeasance
	 	 	58	 
	Section 11.04 Deposited Funds to be Held in Trust
	 	 	60	 
	Section 11.05 Payment of Funds Held by Paying Agents
	 	 	60	 
	Section 11.06 Repayment to the Company
	 	 	60	 
	Section 11.07 Reinstatement
	 	 	61	 
	 
	 	 	 	 
	ARTICLE XII.

	 
	 	 	 	 
	IMMUNITY OF INCORPORATORS, STOCKHOLDERS, 

OFFICERS AND DIRECTORS

	 
	 	 	 	 
	Section 12.01 No Recourse
	 	 	61	 






iii









 






	 	 	 	 	 
	 	 	Page
	ARTICLE XIII.

	 
	 	 	 	 
	MISCELLANEOUS PROVISIONS

	 
	 	 	 	 
	Section 13.01 Effect on Successors and Assigns
	 	 	62	 
	Section 13.02 Actions by Successor
	 	 	62	 
	Section 13.03 Notices
	 	 	62	 
	Section 13.04 Governing Law
	 	 	63	 
	Section 13.05 Treatment of Securities as Debt
	 	 	63	 
	Section 13.06 Compliance Certificates and Opinions
	 	 	63	 
	Section 13.07 Payments on Business Days
	 	 	64	 
	Section 13.08 Conflict with Trust Indenture Act
	 	 	64	 
	Section 13.09 Counterparts
	 	 	64	 
	Section 13.10 Separability
	 	 	64	 
	Section 13.11 No Adverse Interpretation of Other Agreements
	 	 	64	 
	Section 13.12 Table of Contents, Headings, Etc
	 	 	65	 
	Section 13.13 Consent to Jurisdiction and Service of Process
	 	 	65	 
	Section 13.14 Waiver of Jury Trial
	 	 	65	 
	Section 13.15 USA Patriot Act
	 	 	65	 
	Section 13.16 Force Majeure
	 	 	66	 
	 
	 	 	 	 
	ARTICLE XIV.

	 
	 	 	 	 
	SUBORDINATION OF SECURITIES

	 
	 	 	 	 
	Section 14.01 Agreement of Subordination
	 	 	66	 
	Section 14.02 Payment to Securityholders
	 	 	66	 
	Section 14.03 Subrogation of Securities
	 	 	68	 
	Section 14.04 Authorization by Securityholders
	 	 	69	 
	Section 14.05 Notice to Trustee
	 	 	69	 
	Section 14.06 Trustee’s Relation to Senior Indebtedness
	 	 	70	 
	Section 14.07 No Impairment of Subordination
	 	 	70	 
	Section 14.08 Rights of Trustee
	 	 	70	 






iv









 






Cross Reference Table *




	 	 	 
	 	 	Section of
	Section of Trust Indenture Act of 1939, as amended	 	Indenture
	310(a)

	 	7.09 
	310(b)

	 	7.08 
	 

	 	7.10(b) 
	310(c)

	 	Inapplicable 
	311(a)

	 	7.13 
	311(b)

	 	7.13 
	311(c)

	 	Inapplicable
	312(a)

	 	5.01 
	 

	 	5.02(a) 
	312(b)

	 	5.02(b) 
	312(c)

	 	Inapplicable
	313(a)

	 	5.04(a) 
	313(b)

	 	Inapplicable
	313(c)

	 	Inapplicable
	313(d)

	 	5.04(b) 
	314(a)

	 	5.03 
	314(b)

	 	Inapplicable
	314(c)

	 	13.06(a) 
	314(d)

	 	Inapplicable
	314(e)

	 	13.06(b) 
	314(f)

	 	Inapplicable
	315(a)

	 	7.01(b)(1)(i) 
	315(b)

	 	6.01(e) 
	315(c)

	 	7.01(a) 
	315(d)

	 	7.01(b)(1) 
	315(e)

	 	6.07 
	316(a)

	 	6.06, 8.04 
	316(b)

	 	6.04 
	316(c)

	 	8.01 
	317(a)

	 	6.02(d) 
	317(b)

	 	4.03(b) 
	318(a)

	 	13.08 








 




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




v









 










          THIS INDENTURE is dated as of [___] among THERMO FISHER SCIENTIFIC INC., a Delaware
corporation (the “Company”) and [___] (the “Trustee”).




RECITALS




          A. This Indenture provides for the issuance of unsecured subordinated debt securities (the
“Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or
more series, to be authenticated by the certificate of the Trustee.




          B. This Indenture is subject to the provisions of the Trust Indenture Act (as defined below)
that are deemed to be incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.




          C. All things necessary to make this Indenture a valid and legally binding agreement, in
accordance with its terms, have been done.




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




ARTICLE I.




DEFINITIONS



          Section 1.01 Definitions of Terms.




          The terms defined in this Section 1.01 (except as in this Indenture otherwise expressly
provided or unless the context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in this Section 1.01 and
shall include the plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act or that are by reference in the Trust Indenture Act defined in
the Securities Act of 1933, as amended (the “Securities Act”) (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings assigned to such terms
in the Trust Indenture Act and in the Securities Act as in force at the date of the execution of
this instrument. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with U.S. GAAP at the time of any computation.




          “144A Global Security”, with respect to any series of Securities, means one or more Global
Securities, bearing the Private Placement Legend, that will be issued in an aggregate amount of
denominations equal in total to the outstanding principal amount of the Securities of such series
sold in global form in reliance on Rule 144A.




          “Affiliate”, with respect to any specified Person, means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “control” when used with respect to any
specified Person means the power to direct the management and policies of such Person, directly






1









 







or indirectly, whether through ownership of voting securities, by contract or otherwise; and
the terms “controlling” and “controlled” have meanings correlative to the foregoing.




          “Applicable Procedures”, with respect to any transfer or exchange of or for beneficial
interests in any Global Security for a series of Securities, means the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange at the relevant time.




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




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




          “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee of such Board of Directors.




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




          “Business Day”, with respect to any series of Securities, means any day other than Saturday,
Sunday or a day on which Federal or State banking institutions in the Borough of Manhattan, The
City of New York, or in the city where the office or agency for payment on the Securities is
maintained pursuant to Section 4.02, are authorized or obligated by law, executive order or
regulation to close.




          “Capital Stock” of any Person means any and all shares, interests, participations, rights in
or other equivalents (however designated) of such Person’s capital stock, other equity interests
whether now outstanding or issued after the date of this Indenture, partnership interests (whether
general or limited), any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the issuing Person and
any rights (other than debt securities convertible into Capital Stock), warrants or options
exchangeable for or convertible into such Capital Stock.




          “Clearstream” means Clearstream Banking S.A., or its successors.




          “Commission” means the Securities and Exchange Commission.




          “Company” means Thermo Fisher Scientific Inc. until a successor entity shall have become such
pursuant to Article X, and thereafter “Company” shall mean such successor entity.




          “Company Request” means a written request or order signed in the name of the Company by its
chairman of the Board, its vice chairman of the Board, its president or a vice president, and by
its treasurer, an assistant treasurer, its secretary or an assistant secretary, and delivered to
the Trustee.







2









 








          “Corporate Trust Office” means the office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered, which office at the date hereof is
located at [
                                                  
           ].




          “Currency” means Dollars or Foreign Currency.




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




          “Default” means any event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.




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




          “Definitive Security” means a certificated Security registered in the name of the
Securityholder thereof and issued in accordance with Section 2.05.




          “Depositary”, with respect to Securities of any series which the Company shall determine will
be issued in whole or in part as a Global Security, means The Depository Trust Company (“DTC”), New
York, New York, another clearing agency, or any successor registered as a clearing agency under the
Exchange Act, and any other applicable U.S. or foreign statute or regulation, which, in each case,
shall be designated by the Company pursuant to Section 2.01.




          “Designated Currency” has the meaning set forth in Section 2.15.




          “Distribution Compliance Period” means the restricted period as defined in Rule 903(b)(3)
under the Securities Act.




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




          “Dollar Equivalent” means, with respect to any monetary amount in a Foreign Currency, at any
time for the determination thereof, the amount of Dollars obtained by converting such Foreign
Currency involved in such computation into Dollars at the spot rate for the purchase of Dollars
with the applicable Foreign Currency as quoted by a financial institution designated by the Company
in New York, New York, at approximately 11:00 a.m. (New York time) on the date two business days
prior to such determination.




          “Expiration Date” has the meaning specified in Section 8.01.




          “Euroclear” means Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear
System.




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




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







3









 








          “Foreign Currency” means a currency issued by the government of any country other than the
United States or a composite currency the value of which is determined by reference to the values
of the currencies of any group of countries.




          “Foreign Entity” has the meaning set forth in Section 10.01.




          “Foreign Jurisdiction” has the meaning set forth in Section 10.03.




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




          “Governmental Obligations” means securities that are (i) direct obligations of the United
States for the payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States that, in either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depositary receipt; provided, however,
that (except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of principal of or interest on
the Governmental Obligation evidenced by such depositary receipt.




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




          “including” means including without limitation.




          “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.




          “Indirect Participant” means any entity that, with respect to DTC, clears through or maintains
a direct or indirect, custodial relationship with a Participant.




          “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who is not also a QIB.




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







4









 








          “Officer” means any managing director, the chairman or any vice chairman of the Board of
Directors, the chief executive officer, the president, the chief financial officer, the chief
operating officer, the chief accounting officer, the controller, the general counsel, any vice
president, the treasurer, any assistant treasurer, the secretary or any assistant secretary of the
Company.




          “Officer’s Certificate” means a certificate, signed by any managing director or by the
chairman or any vice chairman of the Board of Directors, or the chief executive officer, president,
chief financial officer or vice president or the secretary or any assistant secretary or the
treasurer or any assistant treasurer of the Company that is delivered to the Trustee in accordance
with the terms hereof. Each such certificate shall include the statements provided for in
Section 13.06, if and to the extent required by the provisions thereof.




          “Opinion of Counsel” means an opinion in writing of legal counsel, who may be an Officer or
employee of or counsel for the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such opinion shall include the statements provided for in Section 13.06, if and
to the extent required by the provisions thereof. Opinions of Counsel may rely on certificates of
the Company or governmental or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact.




          “Original Issue Discount Security” means a 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 6.01.




          “Other Additional Amounts” has the meaning set forth in Section 10.03.




          “Outstanding”, when used with reference to Securities of any series, subject to the provisions
of Section 8.04, means, as of any particular time, all Securities of such series authenticated and
delivered by the Trustee under this Indenture, except





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




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




     (c) Securities in substitution for which other Securities shall have been authenticated
and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, except
with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Company.



5









 





          In determining whether the holders of the requisite principal amount of Outstanding Securities
of any 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 6.01 and the principal amount of a Security denominated in one or more
currencies that shall be deemed to be Outstanding for such purposes shall be based on the Dollar
Equivalent on the date of original issuance of such Security, of the principal amount of such
Security.




          “Participant”, with respect to the Depositary, Euroclear or Clearstream, means a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).




          “Periodic Offering” means an offering of Securities of a series from time to time, during
which any or all of the specific terms of the Securities, including the rate or rates of interest,
if any, thereon, the maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities in accordance with the terms of the relevant Supplemental Indenture.




          “Person” means any individual, corporation, limited liability company, partnership, joint
venture, joint-stock company, association, trust, unincorporated organization or government or any
agency or political subdivision thereof; provided, however, for the purposes of
Article X, “Person” shall not include any individual, joint venture, association, unincorporated
organization or government or any agency or political subdivision thereof.




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




          “Private Placement Legend” means the legend set forth in Section 2.02(b) to be placed on all
Restricted Securities issued under this Indenture or pursuant to a Board Resolution or an indenture
supplemental hereto with respect to a series of Securities, except where specifically stated
otherwise by the provisions of this Indenture, such Board Resolution or such supplemental
indenture.




          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.




          “Regulation S Global Security” means, with respect to any series of Securities, a Regulation S
Temporary Global Security of such series, if required by Rule 903 of Regulation S, or a
Regulation S Permanent Global Security of such series, as the case may be.




          “Regulation S Permanent Global Security”, with respect to any series of Securities, means one
or more permanent Global Securities, bearing the Private Placement Legend, that will be issued in
an aggregate amount of denominations equal in total to the outstanding principal amount of the
Securities of such series initially sold or, if required by






6









 







Rule 903 of Regulation S, of the Regulation S Temporary Global Security of such series upon
expiration of the Distribution Compliance Period with respect to such series, as the case may be.




          “Regulation S Temporary Global Security”, with respect to any series of Securities, means one
or more temporary Global Securities, bearing the Private Placement Legend, and the Regulation S
Temporary Global Security Legend issued in an aggregate amount of denominations equal in total to
the outstanding principal amount of the Securities of such series initially sold, if required by
Rule 903 of Regulation S.




          “Regulation S Temporary Global Security Legend” means the legend set forth in Section 2.02(d),
which is required to be placed on all Regulation S Temporary Global Securities issued under this
Indenture.




          “Regulation S” means Regulation S promulgated under the Securities Act, as it may be amended
from time to time, and any successor provision thereto.




          “Responsible Officer” means any vice president, any trust officer, any assistant trust
officer, any assistant vice president, any assistant treasurer, 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.




          “Restricted Definitive Security”, with respect to any series of Securities, means one or more
Definitive Securities of such series bearing the Private Placement Legend issued under this
Indenture.




          “Restricted Global Security”, with respect to any series of Securities, means one or more
Global Securities of such series bearing the Private Placement Legend, issued under this Indenture.




          “Restricted Security”, with respect to any series of Securities, means a Security of such
series, unless or until it has been (i) effectively registered under the Securities Act and
disposed of in accordance with a registration statement with respect to such series or
(ii) eligible to be resold pursuant to Rule 144 under the Securities Act (or any similar provision
then in force).




          “Rule 144A” means Rule 144A promulgated under the Securities Act, as it may be amended from
time to time, and any successor provision thereto.




          “Securities” means the securities authenticated and delivered under this Indenture.




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




          “Security Register” has the meaning set forth in Section 2.05(a).







7









 








          “Security Registrar” has the meaning set forth in Section 2.05(a).




          “Senior Indebtedness” of a Person means the principal of, premium, if any, interest on, and
any other payment due pursuant to any of the following, whether outstanding at the date hereof or
hereafter incurred or created:





     (a) all of the indebtedness of that Person for money borrowed;




     (b) all of the indebtedness of that Person evidenced by notes, debentures, bonds or
other securities sold by that Person for money;




     (c) all of the lease obligations which are capitalized on the books of that Person in
accordance with generally accepted accounting principles;




     (d) all indebtedness of others of the kinds described in either of the preceding
clauses (a) or (b) above and all lease obligations of others of the kind described in the
preceding clause (c) above that the Person, in any manner, assumes or guarantees or that the
Person in effect guarantees through an agreement to purchase, whether that agreement is
contingent or otherwise; and




     (e) all renewals, extensions or refundings of indebtedness of the kinds described in
any of the preceding clauses (a), (b) and (d) and all renewals or extensions of leases of
the kinds described in either of the preceding clauses (c) or (d) above;



          unless, in the case of any particular indebtedness, lease, renewal, extension or refunding,
the instrument or lease creating or evidencing it or the assumption or guarantee relating to it
expressly provides that such indebtedness, lease, renewal, extension or refunding is not superior
in right of payment to the Securities.




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




          “Subsidiary”, with respect to any Person, means any other Person of which at least a majority
of the outstanding Voting Stock at the time is owned or controlled directly or indirectly by such
Person or by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries
of such Person.




          “Taxes” has the meaning set forth in Section 10.03.




          “Trustee” means [                                                   
           ]. and, subject to the provisions of Article VII, shall include its
successors and assigns. The term “Trustee” as used with respect to a particular series of the
Securities shall mean the trustee with respect to that series.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect at the
date of execution of this instrument subject to the provisions of Sections 9.01, 9.02, and 10.01.







8









 








          “Unrestricted Definitive Security”, with respect to any series of Securities, means one or
more Definitive Securities representing such series of Securities that do not bear and are not
required to bear the Private Placement Legend, issued under this Indenture.




          “Unrestricted Global Security”, with respect to any series of Securities, means one or more
permanent Global Securities representing such series of Securities that do not bear and are not
required to bear the Private Placement Legend, issued under this Indenture.




          “Unrestricted Securities”, with respect to any series of Securities, means a Security
(i) effectively registered under the Securities Act and disposed of in accordance with a
registration statement with respect to such series or (ii) distributed to the public pursuant to
Rule 144 under the Securities Act (or any similar provision then in force).




          “U.S. GAAP” means generally accepted accounting principles set forth in the FASB Accounting
Standards Codification or in such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect from time to time.




          “Voting Stock” of a Person means Capital Stock of such Person of any class or kind the holders
of which are ordinarily, in the absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person, even if the right to vote has
been suspended by the happening of such a contingency.




ARTICLE II.




ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES




     Section 2.01 Designation and Terms of Securities.



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





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




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



9









 






               (3) the date or dates on which the principal and premium, if any, of the Securities of
the series is payable;




               (4) the rate or rates (which may be fixed or variable) at which the Securities of the
series shall bear interest or the manner of calculation of such rate or rates, if any
(including any procedures to vary or reset such rate or rates), and the basis upon which
interest will be calculated if other than that of a 360 day year of twelve 30-day months;




               (5) the date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such Interest
Payment Dates, and the record date for the determination of holders to whom interest is
payable on any such Interest Payment Dates;




               (6) any trustees, authenticating agents or paying agents with respect to such series,
if different from those set forth in this Indenture;




               (7) the right, if any, to extend the interest payment periods or defer the payment of
interest and the duration of such extension or deferral;




               (8) the period or periods within which, the price or prices at 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 Company;




               (9) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions (including payments made in
cash in anticipation of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at which, and the terms
and conditions upon which, Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;




               (10) the form of the Securities of the series including the form of the Trustee’s
certificate of authentication for such series;




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




               (12) the Currency or Currencies in which payment of the principal of, premium, if any,
and interest on, Securities of the series shall be payable;




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



10









 






               (14) the terms of any repurchase or remarketing rights;




               (15) if the Securities of the series shall be issued in whole or in part in the form of
a Global Security or Securities, the type of Global Security to be issued; the terms and
conditions, if different from those contained in this Indenture, upon which such Global
Security or Securities may be exchanged in whole or in part for other individual Securities
in definitive registered form; the Depositary for such Global Security or Securities; and
the form of any legend or legends to be borne by any such Global Security or Securities in
addition to or in lieu of the legends referred to in Section 2.02;




               (16) whether the Securities of the series will be convertible into or exchangeable for
other Securities, common shares or other securities of any kind of the Company or another
obligor, and, if so, the terms and conditions upon which such Securities will be so
convertible or exchangeable, including the initial conversion or exchange price or rate or
the method of calculation, how and when the conversion price or exchange ratio may be
adjusted, whether conversion or exchange is mandatory, at the option of the holder or at the
Company’s option, the conversion or exchange period, and any other provision in addition to
or in lieu of those described herein;




               (17) 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 pursuant to Section 6.01;




               (18) any additional restrictive covenants or Events of Default that will apply to the
Securities of the series, or any changes to the restrictive covenants set forth in
Article IV or the Events of Default set forth in Section 6.01 that will apply to the
Securities of the series, which may consist of establishing different terms or provisions
from those set forth in Article IV or Section 6.01 or eliminating any such restrictive
covenant or Event of Default with respect to the Securities of the series;




               (19) any provisions granting special rights to holders when a specified event occurs;




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




               (21) any special tax implications of the Securities, including provisions for Original
Issue Discount Securities, if offered;




               (22) whether and upon what terms Securities of a series may be defeased if different
from the provisions set forth in this Indenture;




               (23) with regard to the Securities of any series that do not bear interest, the dates
for certain required reports to the Trustee;




               (24) whether the Securities of the series will be issued as Unrestricted Securities or
Restricted Securities, and, if issued as Restricted Securities, the rule or



11









 







regulation promulgated under the Securities Act in reliance on which they will be sold;
and




               (25) any and all additional, eliminated or changed terms that shall apply to the
Securities of the series, including any terms that may be required by or advisable under
United States laws or regulations (including the Securities Act and the rules and
regulations promulgated thereunder) or advisable in connection with the marketing of
Securities of that series.



          (b) All Securities of any one series shall be substantially identical, except that Securities
of any particular series may be issued at various times, in different denominations, with different
currency of payments due thereunder, with different dates on which the principal or any installment
of principal is payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates from which such interest may accrue or on
which such interest may be payable, and with different redemption dates, except as may otherwise be
provided in or pursuant to any such Board Resolution or in any supplemental indenture. If any of
the terms of the series are established by action taken pursuant to a Board Resolution of the
Company, a copy of an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officer’s Certificate of the Company setting forth the terms of the series. The terms of the
Securities of any series may provide that such Securities shall be authenticated and delivered by
the Trustee upon original issuance from time to time upon written order of persons designated in
such Board Resolution or supplemental indenture and that such persons are authorized to determine,
consistent with such Board Resolution or supplemental indenture, such terms and conditions of the
Securities of such series.




                    Section 2.02 Form of Securities and Trustee’s Certificate.



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




          (b) Each Restricted Security (and all Restricted Securities issued in exchange therefor or
substitution thereof) shall bear a Private Placement Legend in substantially the following form:





“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED



12









 







HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ITS AFFILIATES OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR
RESALE OF THE SECURITY EVIDENCED HEREBY.”



          (c) To the extent required by the Depositary for particular series of Securities, each Global
Security of such series shall bear legends in substantially the following forms:





“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS
NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.05(C) OF THE
INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”



13









 






“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF ANY ENTITY AS MAY
BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO
SUCH ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”



          (d) To the extent required by the Depositary, each Regulation S Temporary Global Security
shall bear a legend in substantially the following form:





“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN).”



                    Section 2.03 Denominations; Provisions for Payment.



          The Securities shall be issuable as registered Securities and in the denominations of $1,000
or any integral multiple thereof, subject to Section 2.01(a)(11). The Securities of a particular
series shall bear interest payable on the dates and at the rate specified as provided in
Section 2.01 with respect to that series. The principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall
be payable in Dollars except as otherwise specified pursuant to Section 2.01(a)(12), at the office
or agency of the Company maintained for that purpose pursuant to Section 4.02. Each Security shall
be dated the date of its authentication. Unless otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 2.01(a)(4), interest on the Securities
shall be computed on the basis of a 360-day year composed of twelve 30-day months.




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







14









 








          Unless otherwise set forth in a Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of any Securities pursuant to Section 2.01, the term “regular
record date” as used in this Section 2.03 with respect to a series of Securities shall mean a date
15 days immediately preceding any Interest Payment Date. Subject to the provisions of this
Section 2.03, each Security of a series delivered under this Indenture upon registration of
transfer or in exchange for or in lieu of any other Security of such series shall carry the rights
to interest accrued and unpaid, and to accrue, that were carried by such other Security.




          Unless otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 2.01, any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for such Security (“Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date,
and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below.





          (1) The Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such
Security and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee funds in an amount equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such funds when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause (1). Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall not be more than 15 nor less
than ten days prior to the date of the proposed payment and not less than ten days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee promptly shall
notify the Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security Register, not less than
ten days prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered on such special record date and
shall not be payable pursuant to the following clause (2).




          (2) The Company may make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be required by such
exchange.



15









 





                    Section 2.04 Execution and Authentications.



          The Securities shall be signed on behalf of the Company by any member of the Board of
Directors of the Company or by both (a) its president, chief financial officer or vice president
and (b) its secretary, any assistant secretary, its treasurer or any assistant treasurer.
Signatures may be in the form of a manual or facsimile signature. In the case of Definitive
Securities of any series, such signatures may be imprinted or otherwise reproduced on such
Securities. The Securities may contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its authentication by the
Trustee.




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




          Notwithstanding the provisions of Section 2.01 and the preceding paragraph, in the case of
Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with instructions or such other procedures acceptable to
the Trustee as may be specified by or pursuant to a supplemental indenture or the written order of
the Company delivered to the Trustee prior to the time of the first authentication of Securities of
such series. With respect to Securities of a series subject to a Periodic Offering, the Trustee
may conclusively rely, as to the authorization by the Company of any of such Securities, the forms
and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the
written order of the Company, Opinion of Counsel, Officer’s Certificate and other documents
delivered pursuant to this Section 2.04 at or prior to the time of the first authentication of
Securities of such series unless and until such written order, Opinion of Counsel, Officer’s
Certificate or other documents have been superseded or revoked or expire by their terms.





                    Section 2.05 Transfer and Exchange.



          (a) Registration of Transfer and Exchange. The Company shall keep, or cause to be
kept, at its office or agency designated for such purpose as provided in Section 4.02, a register
or registers (the “Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities and the transfers of Securities as provided in
this Article II and which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and the transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the “Security Registrar”). If the
Company fails to appoint or maintain another entity as Security Registrar, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Security Registrar.







16









 








          To permit registrations of transfers and exchanges, the Company shall execute a new Security
or Securities of the same series as the Security presented for a like aggregate principal amount
and in authorized denominations and the Trustee shall authenticate and deliver such Security or
Securities upon receipt of an Authentication Order. The Trustee shall not be required to register
the transfer of or exchange any Security selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.




          All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same indebtedness, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such registration of transfer or
exchange. Prior to such due presentment for the registration of a transfer of any Security, the
Trustee, the Company, any paying agent and the Security Registrar may deem and treat the Person in
whose name any Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Securities and for all other purposes, and
none of the Trustee, the Company, the paying agent or the Security Registrar shall be affected by
notice to the contrary.




          All certifications, certificates and opinions of counsel required to be submitted to the
Trustee pursuant to this Section 2.05 to effect a registration of transfer or exchange may be
submitted by facsimile.




          (b) Service Charge. No service charge shall be payable by a holder of a beneficial
interest in a Global Security or by a Holder of a Definitive Security for any exchange or
registration of transfer of Securities, or for any issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto (other than any such taxes or other governmental
charge payable upon exchange or registration of transfer pursuant to Sections 2.06, 3.03(b) and
9.04).




          (c) Transfer and Exchange of Global Securities. A Global Security may not be
transferred except as a whole by the Depositary for a series of the Securities to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or to another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary for a series of the
Securities or a nominee of such successor Depositary. If at any time the Depositary for a series
of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for
such series or if at any time the Depositary for such series shall no longer be registered or in
good standing under the Exchange Act or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the provisions of Section 2.11 shall no
longer be applicable to the Securities of such series. In addition, (i) the Company may at any
time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of Section 2.11 shall no longer apply to the Securities of such
series and (ii) upon an Event of Default if the Trustee so requests, the Securities of any series
shall no longer be represented by a Global Security and the provisions of Section 2.11 shall no
longer apply to the Securities of such series. In any such event the Company will execute the
Definitive Securities of such series, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such






17









 







series and subject to this Section 2.05 the Trustee, upon receipt of an Officer’s Certificate
evidencing such determination by the Company, if applicable, will authenticate and deliver such
Definitive Securities in exchange for such Global Security. Upon the exchange of the Global
Security of such series for such Definitive Securities of such series, the Global Security shall be
canceled by the Trustee. Such Definitive Securities shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its Participants or
Indirect Participants or otherwise, shall in writing instruct the Trustee. The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.




          Except as provided in Sections 2.06 and 2.07, a Global Security may not be exchanged for
another Security other than as provided in this Section 2.05(c); however, beneficial interests in a
Global Security may be transferred and exchanged as provided in Section 2.05(d) or (e). The
provisions of this Section 2.05(c) are subject to Section 2.11.




          (d) Transfer and Exchange of Beneficial Interests in the Global Securities. The
transfer and exchange of beneficial interests in the Global Securities of a series shall be
effected through the Depositary, in accordance with the provisions of this Indenture, any Board
Resolution and any one or more indentures supplemental hereto, and the Applicable Procedures.
Beneficial interests in the Restricted Global Securities of a series shall be subject to
restrictions on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also shall require
compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:





          (1) Transfer of Beneficial Interests in the Same Global Security. Beneficial
interests in any Restricted Global Security of a series may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same Restricted Global
Security in accordance with the transfer restrictions set forth in the Private Placement
Legend. Beneficial interests in any Unrestricted Global Security of a series may be
transferred to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security of such series. Subject to Section 2.05(e)(4), no written
orders or instructions shall be required to be delivered to the Security Registrar to effect
the transfers described in this Section 2.05(d)(1).




          (2) All Other Transfers and Exchanges of Beneficial Interests in Global
Securities. Subject to Section 2.05(c), in connection with all transfers and exchanges
of beneficial interests that are not subject to Section 2.05(d)(1) above, the transferor of
such beneficial interest must deliver to the Security Registrar, as applicable, either:




          (A) (1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the relevant Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another Global
Security of such series in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance



18









 







with the relevant Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or




          (B) (1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the relevant Applicable Procedures directing the
Depositary to cause to be issued a Definitive Security of such series in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Security Registrar containing information regarding
the Person in whose name such Definitive Security shall be registered to effect the
transfer or exchange referred to in (B)(1) above;


provided that in no event shall Definitive Securities of a series be issued upon the transfer or
exchange of beneficial interests in the Regulation S Temporary Global Security of such series prior
to (y) the expiration of the relevant Distribution Compliance Period and (z) the receipt by the
Security Registrar of any certificates identified by the Company or its counsel to be required
pursuant to Rule 903 and Rule 904 under the Securities Act. Upon satisfaction of all the
requirements for transfer and exchange of beneficial interests in Global Securities of a series
contained in this Indenture, any Board Resolution, or one or more indentures supplemental hereto
and the Securities of such series or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Security or Securities of such series
pursuant to Section 2.05(h).





          (3) Transfer of Beneficial Interests to Another Restricted Global Security. A
beneficial interest in any Restricted Global Security of a series may be transferred to a
Person who takes delivery thereof in the form of a beneficial interest in another Restricted
Global Security of the same series if the transfer complies with the requirements of
Section 2.05(d)(2) and the Security Registrar receives a completed certificate in the form
of Exhibit A.




          (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Security
for Beneficial Interests in an Unrestricted Global Security. A beneficial interest in
any Restricted Global Security of any series may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Security of such series or transferred to a
Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security of such series if the exchange or transfer complies with the requirements of
Section 2.05(d)(2) above and the Security Registrar receives a completed certificate from
such holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel
in form, and from legal counsel, reasonably acceptable to the Security Registrar and the
Company to the effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities Act.



          If any such transfer is effected at a time when an Unrestricted Global Security of such series
has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.04, the Trustee shall authenticate one or more Unrestricted Global
Securities of such series in an aggregate principal amount equal to the






19









 







aggregate principal amount of beneficial interests so transferred. Beneficial interests in an
Unrestricted Global Security of a series cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a Restricted Global Security of such
series.




          (e) Transfer or Exchange of Beneficial Interests for Definitive Securities.




          Subject to Section 2.05(c),





          (1) Beneficial Interests in Restricted Global Securities to Restricted Definitive
Securities. If any holder of a beneficial interest in a Restricted Global Security of a
series proposes to exchange such beneficial interest for a Restricted Definitive Security of
such series or to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Restricted Definitive Security of such series, then, upon receipt by the
Security Registrar of a completed certificate from such holder in the form of Exhibit A or
Exhibit B, as applicable, and certificates and opinions of counsel, if applicable, the
Trustee shall cause the aggregate principal amount of the applicable Restricted Global
Security of such series to be reduced accordingly pursuant to Section 2.05(h), and the
Company shall execute a Restricted Definitive Security of such series in the appropriate
principal amount and, upon receipt of an Authentication Order pursuant to Section 2.04, the
Trustee shall authenticate and deliver to the Person designated in the instructions such
Restricted Definitive Security. Any Restricted Definitive Security of such series issued in
exchange for a beneficial interest in a Restricted Global Security of such series pursuant
to this Section 2.05(e) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall instruct the
Security Registrar through instructions from the Depositary for such series and the
Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive
Securities of such series to the Persons in whose names such Securities are so registered.
Any Restricted Definitive Security of such series issued in exchange for a beneficial
interest in a Restricted Global Security of such series pursuant to this Section 2.05(e)(1)
shall bear the Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.




          (2) Beneficial Interests in Restricted Global Securities to Unrestricted Definitive
Securities. A holder of a beneficial interest in a Restricted Global Security of a
series may exchange such beneficial interest for an Unrestricted Definitive Security of such
series or may transfer such beneficial interest to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security of such series only if the Security
Registrar receives a completed certificate from such holder in the form of Exhibit A or
Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel,
reasonably acceptable to the Security Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.



20









 






          (3) Beneficial Interests in Unrestricted Global Securities to Unrestricted
Definitive Securities. If any holder of a beneficial interest in an Unrestricted Global
Security of a series proposes to exchange such beneficial interest for an Unrestricted
Definitive Security of such series or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Security of such series,
then, upon satisfaction of the conditions set forth in Section 2.05(d)(2), the Trustee shall
cause the aggregate principal amount of the applicable Unrestricted Global Security of such
series to be reduced accordingly pursuant to Section 2.05(h), and the Company shall execute
an Unrestricted Definitive Security of such series in the appropriate principal amount and,
upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall
authenticate and deliver to the Person designated in the instructions such Unrestricted
Definitive Security. Any Unrestricted Definitive Security issued in exchange for a
beneficial interest pursuant to this Section 2.05(e)(3) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Security Registrar through instructions from the Depositary for
such series and the Participant or Indirect Participant. The Trustee shall deliver such
Unrestricted Definitive Securities to the Persons in whose names such Securities are so
registered. Any Unrestricted Definitive Security issued in exchange for a beneficial
interest pursuant to this Section 2.05(e)(3) shall not bear the Private Placement Legend.




          (4) Transfer or Exchange of Regulation S Temporary Global Securities.
Notwithstanding the other provisions of this Section 2.05, a beneficial interest in the
Regulation S Temporary Global Security of a series may not be (A) exchanged for a Definitive
Security of such series prior to (y) the expiration of the Distribution Compliance Period
with respect to such series (unless such exchange is effected by the Company, does not
require an investment decision on the part of the Holder thereof and does not violate the
provisions of Regulation S) and (z) the receipt by the Security Registrar of any
certificates identified by the Company or its counsel to be required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a U.S. person (as such
term is defined in Regulation S) or for the account or benefit of a U.S. person (other than
an initial purchaser of such Regulation S Temporary Global Security) or a Person who takes
delivery thereof in the form of a Definitive Security of such series prior to the events set
forth in clause (A) above or unless the transfer is pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or 904.



          (f) Transfer and Exchange of Definitive Securities for Beneficial Interests.





          (1) Restricted Definitive Securities to Beneficial Interests in Restricted Global
Securities. If any Holder of a Restricted Definitive Security of a series proposes to
exchange such Security for a beneficial interest in a Restricted Global Security of such
series or to transfer such Restricted Definitive Securities of such series to a Person who
takes delivery thereof in the form of a beneficial interest in a Restricted Global Security
of such series, then, upon receipt by the Trustee of the following documentation:



21









 






          (A) if the Holder of such Restricted Definitive Security of such series
proposes to exchange such Security for a beneficial interest in a Restricted Global
Security of such series, a completed certificate from such holder in the form of
Exhibit B; or




          (B) if such Restricted Definitive Security is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or to a non-U.S. person in an
offshore transaction in accordance with Rule 903 or 904 under the Securities Act, a
completed certificate to that effect set forth in Exhibit A, the Trustee shall
cancel the Restricted Definitive Security of such series, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Security of such series and, in the case of clause (B)
above, the 144A Global Security of such series or the Regulation S Global Security
of such series as applicable.




          (2) Restricted Definitive Securities to Beneficial Interests in Unrestricted Global
Securities. A Holder of a Restricted Definitive Security of a series may exchange such
Security for a beneficial interest in an Unrestricted Global Security of such series or
transfer such Restricted Definitive Security of such series to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security of such
series only if the Security Registrar receives a completed certificate from such Holder in
the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and
from legal counsel, reasonably acceptable to the Security Registrar and the Company to the
effect that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act. Upon satisfaction of the
conditions of any of the subparagraphs in this Section 2.05(f)(2), the Trustee shall cancel
the Restricted Definitive Securities of such series so transferred or exchanged and increase
or cause to be increased the aggregate principal amount of the Unrestricted Global Security
of such series.




          (3) Unrestricted Definitive Securities to Beneficial Interests in Unrestricted
Global Securities. A Holder of an Unrestricted Definitive Security of a series may
exchange such Security for a beneficial interest in an Unrestricted Global Security of such
series or transfer such Definitive Securities of such series to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security of such
series at any time. Upon receipt of a written request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Security and increase or cause
or be increased the aggregate principal amount of one of the Unrestricted Global Securities
of such series. If any such exchange or transfer from a Definitive Security of a series to
a beneficial interest is effected pursuant to subparagraphs (2) or (3) of this
Section 2.05(f) at a time when an Unrestricted Global Security of such series has not yet
been issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.04, the Trustee shall authenticate one or more Unrestricted Global
Securities of such series in an aggregate principal amount equal to the principal amount of
Definitive Securities of such series so transferred.



22









 





          (g) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon
written request by a Holder of Definitive Securities of a series and such Holder’s compliance with
the provisions of this Section 2.05(g), the Trustee shall register the transfer or exchange of
Definitive Securities of such series pursuant to the provisions of Section 2.05(a). In addition to
the requirements set forth in Section 2.05(a), the requesting Holder shall provide any additional
certifications, documents, and information, as applicable, required pursuant to the following
provisions of this Section 2.05(g).





          (1) Restricted Definitive Securities to Restricted Definitive Securities. Any
Restricted Definitive Security of a series may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive Security of such
series if the Trustee receives a completed certificate in the form of Exhibit A, including
the certifications, certificates and opinions of counsel required by item (3) thereof, if
applicable.




          (2) Restricted Definitive Securities to Unrestricted Definitive Securities.
Any Restricted Definitive Security of a series may be exchanged by the Holder thereof for an
Unrestricted Definitive Security of such series or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Security of such series if
the Security Registrar receives a completed certificate from such Holder in the form of
Exhibit A or Exhibit B, as applicable and an opinion of counsel in form, and from legal
counsel, reasonably acceptable to the Trustee and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.




          (3) Unrestricted Definitive Securities to Unrestricted Definitive Securities.
A Holder of Unrestricted Definitive Securities of a series may transfer such Securities to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such
series in accordance with subsection 2.05(a). Upon receipt of a request to register such a
transfer, the Security Registrar shall register the Unrestricted Definitive Securities of
such series pursuant to the instructions from the Holder thereof.



          (h) Cancellation and/or Adjustment of Global Securities. At such time as all
beneficial interests in a particular Global Security of a series have been exchanged for Definitive
Securities of such series or a particular Global Security of a series has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Security of such series shall
be returned to or retained and cancelled by the Trustee in accordance with Section 2.08. At any
time prior to such cancellation, if any beneficial interest in a Global Security of such series is
exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial
interest in another Global Security of such series or for Definitive Securities of such series, the
principal amount of Securities of such series represented by such Global Security shall be reduced
accordingly and an endorsement may be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security of such series, such other Global Security
shall be increased accordingly and an endorsement may be made on such Global






23









 







Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.




          (i) No Exchange or Transfer. The Company shall not be required (i) to issue, exchange
or register the transfer of any Securities during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such mailing,
(ii) to register the transfer of or exchange any Securities of any series or portions thereof
called for redemption, nor (iii) to register the transfer of or exchange a Security of any series
between the applicable record date pursuant to Section 2.01(a)(5) and the next succeeding Interest
Payment Date.




                    Section 2.06 Temporary Securities.



          Pending the preparation of definitive Securities of any series, the Company may execute
temporary Securities (printed, lithographed or typewritten) of any authorized denomination and the
Trustee shall authenticate and deliver such Securities. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange therefor without
charge to the holders, at the office or agency of the Company maintained pursuant to Section 4.02
for the purpose of exchanges of Securities of such series, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to
the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.




                    Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.



          In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall execute a new Security of the
same series, bearing a number not contemporaneously outstanding in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen, and upon the Company’s written request the Trustee (subject to the next succeeding
sentence) shall authenticate and deliver, such Security. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the
written request or authorization of any Officer. Upon the issuance of any






24









 







substituted Security, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In case any Security that
has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the
Company, instead of issuing a substitute Security, may pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) if the applicant for such
payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of
the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.




          Every replacement Security issued pursuant to the provisions of this Section 2.07 shall
constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and
all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to
the extent lawful) any and all other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.




                    Section 2.08 Cancellation.



          All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer, if surrendered to the Company or any paying agent, shall be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of the provisions of
this Indenture. On written request of the Company at the time of such surrender, the Trustee shall
deliver to the Company canceled Securities held by the Trustee. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.




                    Section 2.09 Benefits of Indenture.



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




                    Section 2.10 Authenticating Agent.



          So long as any of the Securities of any series remain Outstanding, there may be an
Authenticating Agent for any or all such series of Securities which the Trustee shall have the
right to appoint. The Authenticating Agent shall be authorized to act on behalf of the Trustee to






25









 







authenticate Securities of such series, including Securities issued upon exchange,
registration of transfer or partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in this Indenture to the authentication of
Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with these provisions,
it shall resign immediately. Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee at any time may, and upon
request by the Company shall, terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights,
powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent
pursuant hereto.




                    Section 2.11 Global Securities.



          (a) General. If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then the Company shall
execute one or more Global Securities that (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding Securities of such
series, (ii) shall be registered in the name of the Depositary or its nominee and (iii) shall be
delivered to the Trustee as custodian for the Depositary or otherwise delivered pursuant to the
Depositary’s instructions and the Trustee in accordance with Section 2.04 shall authenticate such
Global Security or Global Securities.




          (b) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and the “Terms and Conditions Governing Use of Euroclear” and
the “General Terms and Conditions” and “Customer Handbook” of Clearstream, respectively, in effect
at the relevant time shall be applicable to transfers of beneficial interests in the Regulation S
Global Securities of such series that are held by Participants through Euroclear or Clearstream.




                    Section 2.12 CUSIP Numbers.



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






26









 







by any defect in or omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the “CUSIP” numbers.




                    Section 2.13 Securities Denominated in Foreign Currencies.



          Except as otherwise specified pursuant to Section 2.01 for Securities of any series, payment
of the principal of, premium, if any, and interest on, Securities of such series denominated in any
Foreign Currency will be made in such Foreign Currency.




          In the event any Foreign Currency or Currencies in which any payment with respect to any
series of Securities may be made ceases to be a freely convertible Currency on United States
Currency markets, for any date thereafter on which payment of principal of, premium, if any, or
interest on the Securities of a series is due, the Company shall select the Currency of payment for
use on such date, all as provided in the Securities of such series, in a Board Resolution or in one
or more indentures supplemental hereto. In such event, the Company shall notify the Trustee of the
Currency which it has selected to constitute the funds necessary to meet the Company’s obligations
on such payment date and of the amount of such Currency to be paid. Such amount shall be
determined as provided in the Securities of such series, in a Board Resolution or in one or more
indentures supplemental hereto. The payment with respect to such payment date shall be deposited
with the Trustee by the Company solely in the Currency so selected.




                    Section 2.14 Wire Transfers.



          Notwithstanding any other provision to the contrary in this Indenture, the Company may make
any payment required to be deposited with the Trustee on account of principal of, premium, if any,
or interest on, the Securities by any method of wire transfer to an account designated in writing
by the Trustee such that funds are available on or before the date such payment is to be made to
the Holders of the Securities in accordance with the terms hereof.




                    Section 2.15 Designated Currency.



          The Company may provide pursuant to Section 2.01 for Securities of any series that:





     (a) the obligation, if any, of the Company to pay the principal of, premium, if any,
and interest on the Securities of any series in a Foreign Currency or Dollars (the
“Designated Currency”) as may be specified pursuant to Section 2.01(a)(12) is of the essence
and agree that, to the fullest extent possible under applicable law, judgments in respect of
Securities of such series shall be given in the Designated Currency;




     (b) the obligation of the Company to make payments in the Designated Currency of the
principal of, premium, if any, and interest on such Securities shall be discharged,
notwithstanding any payment in any other Currency (whether pursuant to a judgment or
otherwise), only to the extent of the amount in the Designated Currency that the
Securityholder receiving such payment, in accordance with normal banking procedures, may
purchase with the amount paid in such other Currency after any premium and cost of exchange
on the business day in the country of issue of the



27









 







Designated Currency or in the international banking community immediately following the
day on which such Securityholder receives such payment;




     (c) if the amount in the Designated Currency that may be so purchased for any reason
falls short of the amount originally due, the Company shall pay such additional amounts as
may be necessary to compensate for such shortfall; and




     (d) any obligation of the Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein, shall continue
in full force and effect.



ARTICLE III.




REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS



                    Section 3.01 Redemption.



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




                    Section 3.02 Notice of Redemption.



          (a) If the Company desires to exercise such right to redeem all or, as the case may be, a
portion of the Securities of any series, the Company shall, or shall instruct the Trustee in
writing to, give notice of such redemption to holders of the Securities of such series to be
redeemed by mailing, first class postage prepaid, a notice of such redemption not less than 15 days
and not more than 60 days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register (unless a shorter period is
specified in the Securities to be redeemed). Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any
Security of any series designated for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the redemption of any other Securities of such
series or any other series. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing
compliance with any such restriction.




          Each such notice of redemption shall specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that: (i) payment of
the redemption price of such Securities to be redeemed will be made at the office or agency of the
Company maintained for such purpose, or, if none, at the Corporate Trust Office of the Trustee,
upon presentation and surrender of such Securities; (ii) interest accrued to the date fixed for
redemption will be paid as specified in said notice; (iii) from and after said date interest will
cease to accrue; (iv) the redemption is for a sinking fund, if such is the case, and (v) the CUSIP
and/or other similar number as contemplated by, and containing the disclaimers and other language
contemplated by, Section 2.12. If less than all the Securities of a series are to be






28









 







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




          (b) If all or less than all the Securities of a series are to be redeemed, the Company shall
give the Trustee at least 15 days’ written notice (unless a shorter period shall be satisfactory to
the Trustee) in advance of the date the Company gives notice to the Securityholders of the date
fixed for redemption as to the aggregate principal amount of Securities of the series to be
redeemed. If less than all the Securities are to be redeemed, the Trustee thereupon shall select
from Securities of such series Outstanding not previously called for redemption, in accordance with
a method determined by the Company (in such manner as complies with applicable legal and stock
exchange requirements, if any) and that may provide for the selection of a portion or portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of such Securities of
such series of a denomination larger than $1,000, the Securities of such series to be redeemed.
The Trustee promptly shall notify the Company in writing of the numbers of the Securities of such
series to be redeemed, in whole or in part.




          The Company, if and whenever it shall so elect, by delivery of instructions signed on its
behalf by any of its Officers, may instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to give notice of redemption in the
manner set forth in this Section 3.02, such notice to be in the name of the Company or its own
name, as the Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case
may be, such Security Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that
may be required under the provisions of this Section 3.02.




                    Section 3.03 Payment Upon Redemption.



          (a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, in each case as
established pursuant to Section 2.01. Interest on such Securities or portions of Securities shall
cease to accrue on and after the date fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect to any such Security or portion
thereof. On presentation and surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, such Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon
to the date fixed for redemption; provided, that, installments of interest whose Stated Maturity is
on or prior to the date fixed for redemption shall be payable to the Securityholders of such
Securities (or one or more Predecessor Securities) registered as such at the close of business on
the applicable record date pursuant to Section 2.03.







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          (b) Upon presentation of any Security of such series that is to be redeemed in part only, the
Company shall execute a new Security of the same series and tenor of authorized denominations in
principal amount equal to the unredeemed portion of the Security so presented and the Trustee shall
authenticate, and the office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, such Security; except that if a Global Security is so
surrendered, the Company shall execute a new Global Security of like tenor in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Global Security so
surrendered and, upon receipt of an Officer’s Certificate requesting authentication and delivery,
the Trustee shall authenticate and deliver to the Depositary for such Global Security, without
service charge, such Global Security.




                    Section 3.04 Sinking Fund.



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




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




                    Section 3.05 Satisfaction of Sinking Fund Payments with Securities.



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




                    Section 3.06 Redemption of Securities for Sinking Fund.



          Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by payment of cash in the Currency in which the Securities
of such series are denominated (except as provided pursuant to Section 2.01), the portion thereof,
if any, that is to be satisfied by delivering and crediting






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Securities of that series pursuant to Section 3.05 and the basis for such credit. Together
with such Officer’s Certificate, the Company will deliver to the Trustee any Securities to be so
delivered. Not less than 15 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.




ARTICLE IV.




CERTAIN COVENANTS



          The following covenants shall apply to the Securities, except with respect to any series of
Securities for which 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 expressly provides
that any such covenant shall not apply to such series of Securities:




                    Section 4.01 Payment of Principal, Premium and Interest.



          The Company will duly and punctually pay or cause to be paid the principal of, premium, if
any, and interest on the Securities of a series at the time and place and in the manner provided
herein and established with respect to such Securities.




                    Section 4.02 Maintenance of Office or Agency.



          So long as any series of the Securities remain Outstanding, the Company will maintain for such
series an office or agency where Securities of such series may be presented or surrendered for
payment, where Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities of such
series and this Indenture may be given or served. Such designation will continue with respect to
each office or agency until the Company, by written notice signed by any Officer and delivered to
the Trustee, shall designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all presentations, surrenders, notices and demands. Unless
otherwise specified in accordance with Section 2.01 with respect to a series of Securities, the
Company initially designates the Corporate Trust Office of [                     ], acting as the Company’s
agent, as the office to be maintained by it for each such purpose.




                    Section 4.03 Paying Agents.



          (a) The Company may appoint one or more paying agents, other than the Trustee, for all or any
series of the Securities. If the Company fails to appoint or maintain another entity as paying
agent, the Trustee shall act as such. The Company or any of their Subsidiaries may act as paying
agent.







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          (b) The Company shall require each paying agent other than the Trustee to agree in writing
that the paying agent will hold in trust for the benefit of Securityholders or the Trustee all
funds held by the paying agent for the payment of principal, premium, if any, or interest on the
Securities, and will promptly notify the Trustee in writing of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a paying agent to pay
all funds held by it to the Trustee. The Company at any time may require a paying agent to pay all
funds held by it to the Trustee. Upon payment over to the Trustee, the paying agent (including the
Company or any of their Subsidiaries serving as the paying agent) shall have no further liability
for the funds. If the Company or any of their Subsidiaries acts as paying agent, it shall
segregate and hold in a separate trust fund for the benefit of the Securityholders all funds held
by it as paying agent.




          (c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold funds
in trust as provided in this Section 4.03 is subject to the provisions of Section 11.06, and
(ii) the Company at any time, for the purpose of obtaining the satisfaction and discharge or
defeasance of this Indenture or for any other purpose, may pay, or direct any paying agent to pay,
to the Trustee all funds held in trust by the Company or such paying agent, such funds to be held
by the Trustee upon the same terms and conditions as those upon which such funds were held by the
Company or such paying agent. Upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such funds.




                    Section 4.04 Statement by Officers as to Default.



          So long as any of the Securities remain outstanding, the Company will furnish to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, a
brief certificate (which need not comply with Section 13.06) executed by the principal executive,
financial or accounting officer of the Company on its behalf as to his or her knowledge of the
Company’s compliance with all covenants and agreements under this Indenture required to be complied
with by the Company (such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture). Such certificate need not include a
reference to any non-compliance that has been fully cured prior to the date as of which such
certificate speaks.




          The Company shall provide written notice to the Trustee within 20 days after becoming aware of
the occurrence of any Event of Default under Section 6.01.




                    Section 4.05 Appointment to Fill Vacancy in Office of Trustee.



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




                    Section 4.06 Existence. 





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




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ARTICLE V.




SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND

THE TRUSTEE



                    Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.



          The Company will furnish or cause to be furnished to the Trustee (a) semi-annually at least
seven Business Days before each Interest Payment Date for a series of Securities (and in all events
at intervals of not more than six months) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series of Securities as of such date,
provided that the Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may require in writing within 30
days after the receipt by the Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished; provided, however, that, in
either case, no such list need be furnished for any series for which the Trustee shall be the
Security Registrar.




                    Section 5.02 Preservation of Information; Communications with Securityholders.



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




          (b) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities.




                    Section 5.03 Reports by the Company.



          (a) So long as any Securities are outstanding, the Company shall file with the Trustee, within
15 days after it files with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the Company is required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. The Company shall be
deemed to have complied with the previous sentence to the extent that such information, documents
and reports are filed with the Commission via EDGAR (or any successor electronic delivery
procedure) or posted on its website.




          (b) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein,






33









 







including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer’s Certificates).




                    Section 5.04 Reports by the Trustee.



          (a) Any Trustee’s report required under Section 313(a) of the Trust Indenture Act shall be
transmitted on or before July 15 in each year following the date hereof, so long as any Securities
are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than
60 nor less than 45 days prior thereto.




          (b) A copy of each such report shall, at the time of such transmission to Securityholders, be
filed by the Trustee with the Company, with any stock exchange upon which any Securities are listed
and with the Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange or delisted therefrom.




ARTICLE VI.




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON

EVENT OF DEFAULT



                    Section 6.01 Events of Default.



          (a) Whenever used herein with respect to Securities of a particular series, “Event of Default”
means any one or more of the following events that has occurred and is continuing, except with
respect to any series of Securities for which 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 expressly provides that any such Event of Default shall not apply to such series of
Securities:





          (1) default in the payment of the principal or any premium on any Security of that
series when due (whether at maturity, upon acceleration, redemption or otherwise);




          (2) default for 30 days in the payment of interest on any Security of such series when
due;




          (3) failure by the Company to observe or perform any term of the Indenture (other than
those referred to in (1) or (2) above and other than a covenant or agreement included in
this Indenture not for the benefit of such series) for a period of 90 days after the Company
receives a notice of default stating that the Company is in breach. The notice must be sent
by either the Trustee or Holders of 25% of the principal amount of the Securities of the
affected series;




          (4) (A) failure by the Company to pay indebtedness for money borrowed by the Company or
for which the Company has guaranteed the payment, in an aggregate principal amount of at
least $100,000,000, at the later of final maturity and the expiration of any related
applicable grace period and such defaulted payment shall not have been made, waived or
extended within 30 days or (B) acceleration of the maturity of



34









 







any indebtedness for money borrowed by the Company or for which the Company has
guaranteed the payment, in an aggregate principal amount of at least $100,000,000, if such
indebtedness has not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days; provided, however, that, if the default under the instrument is
cured by the Company, or waived by the holders of the indebtedness, in each case as
permitted by the governing instrument, then the Event of Default under this Indenture caused
by such default will be deemed likewise to be cured or waived;




          (5) the entry by a court having competent jurisdiction of:




          (A) an order for relief in respect of the Company in an involuntary proceeding
under any Bankruptcy Law and such order shall remain unstayed and in effect for a
period of 60 consecutive days; or




          (B) a final and non-appealable order appointing a Custodian, of the Company, or
ordering the winding up or liquidation of the affairs of the Company, and such order
shall remain unstayed and in effect for a period of 60 consecutive days;




          (6) the commencement by the Company of a voluntary proceeding under any Bankruptcy Law
or the consent by the Company to the entry of a decree or order for relief in an involuntary
proceeding under any Bankruptcy Law or the filing by the Company of a consent to an order
for relief in any involuntary proceeding under any Bankruptcy Law or to the appointment of a
Custodian or the making by the Company of an assignment for the benefit of creditors; or




          (7) 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.



          (b) In each and every such case (other than an Event of Default specified in Section
6.01(a)(5) or 6.01(a)(6)), unless the principal of all the Securities of that series shall have
already become due and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by such Securityholders), may declare the unpaid
principal of all the Securities of that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable. If an Event of Default
specified in Section 6.01(a)(5) or 6.01(a)(6) occurs, the principal amount of all the Securities
shall automatically, and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.




          (c) At any time after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of the amount due shall
have been obtained or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has or has caused to be paid or deposited with the Trustee an






35









 







amount sufficient to pay all matured installments of interest upon all the Securities of that
series and the principal of and premium, if any, on any and all Securities of that series that
shall have become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate expressed in the Securities of that series to the
date of such payment or deposit), and (ii) any and all Events of Default under this Indenture with
respect to such series, other than the nonpayment of principal on Securities of that series that
shall have become due solely by such declaration of acceleration, shall have been remedied or
waived as provided in Section 6.06.




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




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




          (e) The Trustee shall give to the Securityholders of any series, as the names and addresses of
such Holders appear on the Security Register, notice by mail of all defaults known to the Trustee
that 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 6.01(e) 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,
premium, if any, 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 in
good faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.




                    Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.



          (a) The Company covenants that (i) in case it shall default in the payment of any installment
of interest on any of the Securities of a series, or any payment required by any sinking or
analogous fund established with respect to that series as and when the same shall have become due
and payable, and such default shall have continued for a period of 30 days, or (ii) in case it
shall default in the payment of the principal of, or premium, if any, on any of the Securities of a
series when the same shall have become due and payable, whether upon maturity of the Securities of
a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on






36









 







all such Securities for principal, premium, if any, or interest, or both, with interest upon
the overdue principal, premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the rate expressed in
the Securities of that series; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.




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




          (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the Company or its
respective creditors or property, the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and, except as otherwise provided by
law, shall be entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under this Indenture at
the date of institution of such proceedings and for any additional amount that may become due and
payable by the Company after such date, and to collect and receive any funds or other property
payable or deliverable on any such claim, and to distribute the same in accordance with
Section 6.03. Any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.




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




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





37











 





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





          Section 6.03 Application of Funds Collected.



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





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




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




     THIRD: To the Company.




          Section 6.04 Limitation on Suits.



          No holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as trustee hereunder;
(iii) such holder or holders 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; (iv) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; and (v) during such 60 day period, the
holders of a majority in principal amount of the Securities of that series do not give the Trustee
a direction inconsistent with the request.




          Notwithstanding anything contained herein to the contrary, any other provisions of this
Indenture, the right of any holder of any Security to receive payment of the principal of, and
premium, if any, and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of such holder. By






38









 







accepting a Security hereunder it is expressly understood, intended and covenanted by the
taker and holder of every Security of such series with every other such taker and holder and the
Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all holders
of Securities of such series. For the protection and enforcement of the provisions of this Section
6.04, each Securityholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.





          Section 6.05 Rights and Remedies Cumulative; Delay or Omission not Waiver.



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




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





          Section 6.06 Control by Securityholders.



          The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.04, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to such series;
provided, however, that such direction shall not be in conflict with any rule of
law or with this Indenture or be unduly prejudicial to the rights of holders of Securities of any
other series at the time Outstanding determined in accordance with Section 8.04. Subject to the
provisions of Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith, by a Responsible Officer or Responsible Officers of the
Trustee, shall determine that the proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the Securities of any series
at the time Outstanding affected thereby, determined in accordance with Section 8.04, by written
notice to the Company and the Trustee, on behalf of the holders of all of the Securities of such
series, may rescind an acceleration or waive any existing Default or Event of Default with respect
to such series and its consequences, if the rescission would not conflict with any judgment or
decree, except (i) a default in the payment of the principal of, premium, if any, or interest on,
any of the






39









 







Securities of that series; or (ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Upon any such waiver, the default covered thereby shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured, for all
purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such
series shall be restored to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.





          Section 6.07 Undertaking to Pay Costs.



          All parties to this Indenture agree, and each holder of any Securities by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 6.07 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of, premium, if any, or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this Indenture.





          Section 6.08 Waiver of Usury, Stay Or Extension Laws.



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




ARTICLE VII.




CONCERNING THE TRUSTEE




          Section 7.01 Certain Duties and Responsibilities of Trustee.



          (a) In case an Event of Default with respect to the Securities of a series has occurred (that
has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.







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




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




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




          (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;




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




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



41









 






          Section 7.02 Certain Rights of Trustee.




     Except as otherwise provided in Section 7.01:




     (a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper or document
(whether in its original or facsimile form) 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 Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by an Officer (unless other evidence in respect thereof is specifically prescribed
herein).




     (c) The Trustee may consult with counsel of its own selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder in good faith and in reliance
thereon.




     (d) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred therein or thereby.




     (e) The Trustee shall not be liable for any action taken or omitted to be taken by it
in good faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture, provided, however, that the Trustee’s conduct
does not constitute willful misconduct, bad faith or negligence.




     (f) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other papers or documents, but the
Trustee, in its discretion, may make such further inquiry into such matters as it may see
fit, and if the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled upon reasonable notice and at reasonable times to examine the books,
records and premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation.




     (g) The Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee.




     (h) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee



42









 







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




     (i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder.




     (j) The Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by
any person authorized to sign an Officer’s Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.



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





          Section 7.03 Trustee not Responsible for Recitals or Issuance of Securities.



          (a) The recitals contained herein and in the Securities shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same.




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




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





          Section 7.04 May Hold Securities.



          The Trustee or any paying agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar. However, the Trustee is subject to Sections
7.09 and 7.13.





          Section 7.05 Funds Held in Trust.



          Subject to the provisions of Section 11.06, all funds received by the Trustee, until used or
applied as herein provided, shall be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The






43









 







Trustee shall be under no liability for interest on any funds received by it hereunder except
such as it may agree with the Company to pay thereon.





          Section 7.06 Compensation and Reimbursement.



          (a) The Company shall pay to the Trustee, and the Trustee shall be entitled to be paid, such
compensation (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee from time to time may agree in
writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee. Except as
otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses and disbursements incurred or made by the Trustee 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 Persons not regularly in its employ) except any such
expense or disbursement as shall have been caused by its own negligence, willful misconduct or bad
faith. The Company shall indemnify the Trustee (and its officers, agents, directors and employees)
for, and shall hold it harmless against, any and all loss, liability, claim, damage or expense,
including taxes (other than taxes based upon, measured by or determined by the income of the
Trustee) incurred without negligence, willful misconduct or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability (whether asserted by the
Company, any Holder or any other Person). The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee so to notify the Company shall not
relieve the Company of its obligations hereunder, except to the extent that the Company has been
prejudiced by such failure. The Company shall defend the claim and the Trustee shall cooperate, to
the extent reasonable, in the defense of any such claim, and, if (in the opinion of counsel to the
Trustee) the facts and/or issues surrounding the claim are reasonably likely to create a conflict
with the Company, the Company shall pay the reasonable fees and expenses of separate counsel to the
Trustee. The Company need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad
faith. The Company need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld or delayed.




          (b) The obligations of the Company under this Section 7.06 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses and disbursements shall: (i) be secured
by a lien prior 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 (ii) survive the termination of this Indenture and resignation or removal of the
Trustee.




          (c) When the Trustee incurs expenses or renders services in connection with an Event of
Default, the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.







44









 









          Section 7.07 Reliance on Officer’s Certificate.



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





          Section 7.08 Disqualification; Conflicting Interests.



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





          Section 7.09 Corporate Trustee Required; Eligibility.



          There shall at all times be a Trustee with respect to the Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws of the United
States or any State or Territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least $100,000,000, and subject
to supervision or examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this
Section 7.09 the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any Affiliate of the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, the
Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.





          Section 7.10 Resignation and Removal; Appointment of Successor.



          (a) The Trustee or any successor hereafter appointed may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company promptly shall appoint a successor trustee with respect to
Securities of such series. If no successor trustee shall have been so appointed and have accepted
appointment within 60 days after the retiring Trustee resigns, the retiring Trustee, at the expense
of the Company, or the Company may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of






45









 







such series, or any Securityholder of that series who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.




          (b) In case at any time any one of the following shall occur, the Company may remove the
Trustee with respect to all or any series of Securities and appoint a successor trustee, or, unless
the Trustee’s duty to resign is stayed as provided herein, any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months, on behalf of that holder and all
others similarly situated, may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee:





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




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




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



          If an instrument of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.




          (c) The holders of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding at any time may remove the Trustee with respect to such series upon 30 days’
written notice to the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.




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




          (e) Any successor trustee appointed pursuant to this Section 7.10 may be appointed with
respect to the Securities of one or more series or all of such series, and at any time there shall
be only one Trustee with respect to the Securities of any particular series.







46









 









          Section 7.11 Acceptance of Appointment By Successor.



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




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




          (c) Upon request of any such successor trustee, the Company may execute any and all
instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in Section 7.11(a) or (b), as the case may be.







47









 








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




          (e) Upon acceptance of appointment by a successor trustee as provided in this Section 7.11,
the successor trustee shall cause a notice of its succession to be transmitted to Securityholders.





          Section 7.12 Merger, Conversion, Consolidation or Succession to Business.



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





          Section 7.13 Preferential Collection of Claims Against the Company.



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




ARTICLE VIII.




CONCERNING THE SECURITYHOLDERS




          Section 8.01 Evidence of Action by Securityholders.



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




          The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided,






48









 







however, that the Company may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration, request or direction
referred to in the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders remain Holders after
such record date; provided, however, that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 13.03.




          The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any notice of
Default, (ii) any declaration of acceleration referred to in Section 6.01, (iii) any request to
institute proceedings referred to in Section 6.04 or (iv) any direction referred to in Section
6.06, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date
for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Company in writing
and to each Holder of Securities of the relevant series in the manner set forth in Section 13.03.




          With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided, however, that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner set forth in Section
13.03, on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which set






49









 







such record date shall be deemed to have initially designated the 180th day after such record date
as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.




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





          Section 8.02 Proof of Execution by Securityholders.



          Subject to the provisions of Section 8.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:





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




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




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




          Section 8.03 Who May be Deemed Owners.



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




          None of the Company, the Trustee, any paying agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.





          Section 8.04 Certain Securities Owned by Company Disregarded.



          In determining whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction, consent of waiver under this






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Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by an Affiliate of the Company shall be disregarded and deemed not
to be Outstanding for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not an Affiliate. In case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and
identifying all Securities of a particular series, if any known by the Company to be owned or held
by or for the account of any of the above described Persons and, subject to Sections 7.01 and 7.02,
the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities of such particular series not listed
therein are Outstanding for the purpose of any such determination.





          Section 8.05 Actions Binding on Future Securityholders.



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




ARTICLE IX.




SUPPLEMENTAL INDENTURES




          Section 9.01 Supplemental Indentures Without the Consent of Securityholders.



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







51









 









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




     (b) 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 of the Company may
deem necessary or desirable, and which shall not in each case adversely affect the interests
of the Holders of the Securities in any material respect;




     (c) to evidence the succession of another Person to the Company, or successive
successions, and the assumption by the successor Person of the covenants, agreements and
obligations of the Company, as the case may be, pursuant to Article X;




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




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




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




     (g) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall not become effective with respect to any outstanding
Security of any series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision;




     (h) to secure the Securities of any series;




     (i) to make any other change that does not adversely affect the rights of any
Securityholder of Outstanding Securities in any material respect;




     (j) to provide for the issuance of and establish the form and terms and conditions of
the Securities of any series as provided in Section 2.01, to provide which, if any, of the
covenants of the Company shall apply to such series, and to provide which of the Events of
Default shall apply to such series or to define the rights of the holders of such series of
Securities;




     (k) to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




     (l) to issue additional Securities of any series; provided that such additional
Securities have the same terms as, and be deemed part of the same series as, the



52









 







applicable series of Securities issued hereunder to the extent required by Section
2.01(b); or




     (m) 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 trust hereunder by more than one Trustee.



          Upon the request of the Company, accompanied by Board Resolutions authorizing the execution of
any such supplemental indenture, and upon receipt by the Trustee of the documents described in
Section 9.05, the Trustee shall join with the Company in the execution of any such supplemental
indenture, and to make any further appropriate agreements and stipulations that may be therein
contained.




          Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 9.02.





          Section 9.02 Supplemental Indentures with Consent of Securityholders.


With the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority
in aggregate principal amount of the Securities of each series at the time Outstanding affected by
such supplemental indenture or indentures, the Company, when authorized by Board Resolutions, and
the Trustee from time to time and at any time may enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in
effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture, without the consent of the
holders of each Security then Outstanding and affected thereby, shall (i) change the Stated
Maturity of the principal of, or any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.01(b), or change any place of payment where, or the coin or
Currency in which, any Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or (ii) reduce the percentage in
principal amount of the Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture, or (iii) modify any of the provisions of this
Section or Section 6.06, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.






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




          It shall not be necessary for the consent of Securityholders of a series affected thereby
under this Section 9.02 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 Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 9.02, the Company shall mail or caused to be mailed 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 Security Register, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Company to mail such notice, or any
defect therein, shall not in any way impair or affect the validity of any such supplemental
indenture.





          Section 9.03 Effect of Supplemental Indentures.



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





          Section 9.04 Securities Affected by Supplemental Indentures.



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





          Section 9.05 Execution of Supplemental Indentures.



          Upon the request of the Company, accompanied by Board Resolutions authorizing the execution of
any such supplemental indenture, and, if applicable, upon the filing with the Trustee of evidence
of the consent of Securityholders required to consent thereto as






54









 







aforesaid, the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee in its discretion may but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, shall receive an Opinion of Counsel and Officer’s Certificate as conclusive evidence
that any supplemental indenture executed pursuant to this Article IX is authorized or permitted by,
and conforms to, the terms of this Article IX.




ARTICLE X.




SUCCESSOR




          Section 10.01 Consolidation, Merger and Sale of Assets.



          The Company shall not consolidate with, merge with or into, or sell, convey, transfer, lease
or otherwise dispose of all or substantially all of the property and assets of the Company or the
Company’s Subsidiaries taken as a whole (in one transaction or a series of related transactions)
to, any Person or permit any Person to merge with or into it unless:




          (a) The Company shall be the continuing Person, or the Person (if other than the Company)
formed by such consolidation or into which we are merged or that acquired or leased such property
and assets, shall be a Person validly existing under the laws of the United States of America or
any jurisdiction thereof, or, subject to the conditions set forth in Section 10.03, a jurisdiction
outside the United States (a “Foreign Entity”), and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the Company’s obligations under this
Indenture and the Securities;




          (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and




          (c) the Company delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in
each case stating that such consolidation, merger or transfer and such supplemental indenture
complies with this Section 10.01 and that all conditions precedent provided for herein relating to
such transaction have been complied with.




          To the extent that a Board Resolution or supplemental indenture pertaining to any series
provides for different provisions relating to the subject matter of this Article X, the provisions
in such Board Resolution or supplemental indenture shall govern for purposes of such series.





          Section 10.02 Successor Person Substituted.



          Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of the Company in accordance
with Section 10.01 of this Indenture, the successor Person formed by such consolidation or into
which the Company is merged or to which such sale, conveyance, transfer, lease or other disposition
is made shall succeed to and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor






55









 







Person had been named as the Company; provided that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the Securities in the case of a
lease of all or substantially all of its property and assets.





          Section 10.03 Other Additional Amounts.



          If the Company or any successor to the Company under this Indenture shall be a Foreign Entity,
the Company or its successor shall pay and shall provide notice to the Trustee of the payment of,
such additional amounts (“Other Additional Amounts”) as may be necessary in order that every
net payment on each Security, after withholding for or on account of any tax, assessment or other
governmental charge (“Taxes”) imposed upon or as a result of such payment by the jurisdiction
outside the United States in which such Foreign Entity is organized and existing (or any political
subdivision or taxing authority thereof or therein (such jurisdiction, a “Foreign
Jurisdiction”)), shall not be less than the amount provided for in such Security to be then due
and payable; provided, however, that no such Other Additional Amounts shall be payable on
account of:




          (a) any Tax which would not have been so imposed but for the existence of any present or
former connection between such Holder (or between a fiduciary, settlor, beneficiary, member,
shareholder of or possessor of a power over such Holder, if such Holder is an estate, a trust, a
partnership or a corporation) and the Foreign Jurisdiction giving rise to payments of the Other
Additional Amounts, including, without limitation, such Holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been a citizen or resident of the
Foreign Jurisdiction or treated as a resident thereof, or being or having been engaged in trade
or business or present therein, or having had a permanent establishment therein;




          (b) any
Tax which would not have been so imposed but for the presentation by the
Holder of such Security or any payment appertaining thereto for payment on a date more than 15
days after the date on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;




          (c) any estate, inheritance, gift, sales, transfer, personal property or similar Tax;




          (d) any Tax which is payable otherwise than by deduction or withholding from
payments of principal of, premium, if any, or interest on such Security;




          (e) any Tax imposed on a Holder that is a partnership or a fiduciary, but only to the
extent that any beneficial owner or member of the partnership or beneficiary or settlor
with respect to the fiduciary would not have been entitled to the payment of Other Additional
Amounts had the beneficial owner, member, beneficiary or settlor directly received its
beneficial or distributive share of payments on such Security; or




          (f) any combination of items (a), (b), (c), (d) and (e).




          Whenever in this Indenture there is mentioned, in any context, the payment of the principal
of or any premium or interest on, or in respect of, any Security, such mention shall be






56









 







deemed to include mention of the payment of Other Additional Amounts provided by the
terms of this Indenture or by the terms of such Securities to the extent that, in such context,
Other Additional Amounts are, were or would be payable in respect thereof pursuant to such
terms, and express mention of the payment of Other Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Other Additional Amounts in those provisions
hereof where such express mention is not made.




ARTICLE XI.




SATISFACTION AND DISCHARGE




          Section 11.01 Applicability of Article.



          If the Securities of a series are denominated and payable only in Dollars (except as provided
pursuant to Section 2.01), then the provisions of this Article XI relating to defeasance of
Securities shall be applicable except as otherwise specified pursuant to Section 2.01 for
Securities of such series. Defeasance provisions, if any, for Securities denominated in a Foreign
Currency may be specified pursuant to Section 2.01.





          Section 11.02 Satisfaction and Discharge of Indenture.



          If at any time:




          (a) either





          (i) the Company shall have delivered or shall have caused to be delivered to the
Trustee for cancellation all Securities of a series theretofore authenticated (other than
any Securities that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07) and Securities for whose payment funds or
Governmental Obligations have theretofore been deposited in trust or segregated and held in
trust by the Company and thereupon repaid to the Company or discharged from such trust, as
provided in Section 11.06; or




          (ii) all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable or are by their terms to become
due and payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall irrevocably deposit or cause to be deposited with the Trustee as trust funds,
cash or Governmental Obligations that will generate enough cash, or a combination thereof
sufficient to pay in Dollars (except as otherwise provided pursuant to Section 2.01) at
maturity or upon redemption all Securities of such series not theretofore delivered to the
Trustee for cancellation, including principal, premium, if any, and interest due or to
become due on such date of maturity or redemption date, as the case may be;



          (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to such series; and




57









 








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



then this Indenture shall cease to be of further effect with respect to such series except for the
following provisions that shall survive until the date of maturity or redemption date, as the case
may be: (A) the rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 11.03(c) and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when due, (B) the Company’s
obligation with respect to such Securities under Sections 2.03, 2.04, 2.05, 2.07, 4.02, 4.03, 7.05
and 7.10 hereof, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(D) this Article XI. Sections 7.06 and 11.06 shall survive to such date and thereafter, and the
Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture with respect to such
series.





          Section 11.03 Defeasance and Discharge of Obligations; Covenant Defeasance.



          (a) If at any time:





          (i) all such Securities of a particular series not heretofore delivered to the Trustee
for cancellation or that have not become due and payable as described in Section 11.02 shall
have been paid by the Company by depositing irrevocably with the Trustee in trust funds or
an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and




          (ii) the Company shall also pay or cause to be paid all other amounts payable hereunder
by the Company with respect to such series,


then, after the date such funds or Governmental Obligations, as the case may be, are deposited with
the Trustee, the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except, to the extent applicable to each, for the following
provisions that shall survive until such Securities shall mature and be paid: (A) the rights of
Holders of Securities of such series to receive, solely from the trust fund described in Section
11.03(c) and as more fully set forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities when due, (B) the Company’s obligation with respect to
such Securities under Sections 2.03, 2.04, 2.05, 2.07, 4.02, 4.03, 7.05 and 7.10 hereof, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article XI.
Thereafter, Sections 7.06 and 11.06 shall survive such satisfaction and discharge.




          (b) In addition, each of the Company, at its option and at any time, by written notice
executed by an Officer delivered to the Trustee, may elect to have its obligations, to the extent
applicable to each, under Section 5.03 and any covenant contained in Article X, and any other
covenant contained in the Board Resolution or supplemental indenture relating to such



58









 






series
pursuant to Section 2.01, discharged with respect to all Outstanding Securities of a series, this
Indenture and any indentures supplemental to this Indenture insofar as such Securities are
concerned (“covenant defeasance”), such discharge to be effective on the date the conditions set
forth in clauses (i) through (vii) of Section 11.03(c) are satisfied, and such Securities shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or
declaration of Securityholders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be “Outstanding” for all other purposes under this Indenture. For
this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of a
series, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute an Event of Default under Section 6.01(a)(3) or otherwise, nor shall there be
thereafter any event constituting an Event of Default under Section 6.01(a)(4), but except as
specified in this Section 11.03(b), the remainder of the Company’s obligations under the Securities
of such series, this Indenture, and any indentures supplemental to this Indenture with respect to
such series shall be unaffected thereby.




          (c) The following shall be the conditions to the application of Section 11.03 to the
Outstanding Securities of the applicable series:





          (i) the Company irrevocably deposits in trust with the Trustee or, at the option of the
Trustee, with a trustee satisfactory to the Trustee and the Company under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee, cash or
Governmental Obligations that will generate cash sufficient to pay principal of, premium, if
any, and interest on the Outstanding Securities of such series to maturity or redemption, as
the case may be, and to pay all other amounts payable by it hereunder, provided that (A) the
trustee of the irrevocable trust shall have been irrevocably instructed to pay such funds or
the proceeds of such Governmental Obligations to the Trustee and (B) the Trustee shall have
been irrevocably instructed to apply such funds or the proceeds of such Governmental
Obligations to the payment of said principal, premium, if any, and interest with respect to
the Securities of such series;




          (ii) the Company delivers to the Trustee an Officer’s Certificate stating that all
conditions precedent specified herein relating to defeasance or covenant defeasance, as the
case may be, have been complied with, and an Opinion of Counsel to the same effect;




          (iii) no Event of Default under clauses (1), (2), (5) or (6) of Section 6.01(a) shall
have occurred and be continuing, and no event which with notice or lapse of time or both
would become such an Event of Default shall have occurred and be continuing, on the date of
such deposit;




          (iv) in the event of an election under Section 11.02(a), the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or (B) since the
date of this instrument, there has been a change in the applicable Federal



59









 







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




          (v) in the event of an election under Section 11.02(b), the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such Securities and will
be subject to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant Defeasance were not to occur; and




          (vi) notwithstanding any other provisions of this Section 11.03, such covenant
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company pursuant to Section 2.01.



          After such irrevocable deposit made pursuant to this Section 11.03 and satisfaction of the
other conditions set forth herein, the Trustee upon request shall acknowledge in writing the
discharge of the Company’s obligations pursuant to this Section 11.03.





          Section 11.04 Deposited Funds to be Held in Trust.



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





          Section 11.05 Payment of Funds Held by Paying Agents.



          In connection with the provisions of Section 11.02 or 11.03, all funds or Governmental
Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such funds or Governmental Obligations.





          Section 11.06 Repayment to the Company.



          Any funds or Governmental Obligations deposited with any paying agent or the Trustee, or then
held by the Company, in trust for payment of principal of, premium, if any, or
interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least one year after the date upon which the principal of,
premium, if any, or interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company, as applicable, or if then held by the Company shall be



60









 






discharged
from such trust; and thereafter, the paying agent and the Trustee shall be released from all
further liability with respect to such funds or Governmental Obligations, and the holder of any of
the Securities entitled to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company, as applicable, for the payment thereof. Anything in this Article XI to
the contrary notwithstanding, subject to Section 7.06, the Trustee shall deliver or pay to the
Company from time to time upon request by the Company any funds or Governmental Obligations (or
other property and any proceeds therefrom) held by it as provided in Sections 11.02 or 11.03 which,
in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect a defeasance or covenant defeasance, as the case
may be, in accordance with this Article XI.





          Section 11.07 Reinstatement.



          If the Trustee or paying agent is unable to apply any funds or Governmental Obligations in
accordance with Section 11.02 or 11.03 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture, any indentures supplemental to
this Indenture with respect to the applicable series of Securities and the Securities of such
series shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.02
or 11.03, as the case may be, until such time as the Trustee or paying agent is permitted to apply
all such funds or Governmental Obligations in accordance with Section 11.02 or 11.03, as the case
may be; provided, however, that if the Company has made any payment of principal, premium, if any,
or interest on any Securities of such series following the reinstatement of its obligations as
aforesaid, the Company, as applicable, shall be subrogated to the rights of the holders of such
Securities of such series to receive such payment from the funds or Governmental Obligations held
by the Trustee or paying agent.




ARTICLE XII.




IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




          Section 12.01 No Recourse.



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



61









 






any and all such personal liability of every name and nature, either at common law or in equity or
by constitution or statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the
issuance of such Securities.




ARTICLE XIII.




MISCELLANEOUS PROVISIONS




          Section 13.01 Effect on Successors and Assigns.



          All the agreements of the Company in this Indenture or the Securities shall bind its
respective successor whether so expressed or not. All agreements of the Trustee in this Indenture
shall bind its successor whether so expressed or not.





          Section 13.02 Actions by Successor.



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





          Section 13.03 Notices.



          Any notice or communication by the Company or the Trustee to the others is duly given if in
writing and delivered in person or mailed by first-class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to
the other’s address:




	 	 	 

	If to the Company:

	 	Thermo Fisher Scientific Inc.
	 

	 	81 Wyman Street
	 

	 	Waltham, Massachusetts
	 

	 	Attention: Seth H. Hoogasian
	 

	 	Facsimile No.: (781) 622-1283
	 
	 	 
	With copies to:

	 	Hal J. Leibowitz
	 

	 	Wilmer Cutler Pickering Hale and Dorr LLP.
	 

	 	60 State Street
	 

	 	Boston, Massachusetts 02109
	 

	 	Telephone: (617) 526-6461
	 

	 	Fax: (617) 526-5000
	 
	 	 
	If to the Trustee:
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 






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	 	Attention: [Corporate Trust Administration]






          The Company or the Trustee by notice to the others may designate additional or different
addresses for subsequent notices or communications.




          All notices and communications (other than those sent to Securityholders) shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.




          Any notice or communication to a Securityholder shall be mailed by first-class mail, certified
or registered, return receipt requested, to his address shown on the Security Register. Failure to
mail a notice or communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.




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




          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is conclusively presumed duly given, whether or not the addressee receives it.





          Section 13.04 Governing Law.



          This Indenture and each Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State without regard to conflicts of laws principles that would require the application of any
other law. This Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be governed by such
provisions.





          Section 13.05 Treatment of Securities as Debt.



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





          Section 13.06 Compliance Certificates and Opinions.



          (a) Upon any application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that, in the opinion of the signer, 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.




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          (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this Indenture shall include: (1) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (3) a statement that, in
the opinion of 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 (4) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.





          Section 13.07 Payments on Business Days.



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





          Section 13.08 Conflict with Trust Indenture Act.



          If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.





          Section 13.09 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 13.10 Separability.



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





          Section 13.11 No Adverse Interpretation of Other Agreements.



          This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.







64









 









          Section 13.12 Table of Contents, Headings, Etc.



          The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.





          Section 13.13 Consent to Jurisdiction and Service of Process.



          The Company agrees that any legal suit, action or proceeding brought by any party to enforce
any rights under or with respect to this Indenture, any Security or any other document or the
transactions contemplated hereby or thereby may be instituted in any state or federal court in The
City of New York, State of New York, United States of America, irrevocably waives to the fullest
extent permitted by law any objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding, irrevocably waives to the fullest extent permitted by law any
claim that and agrees not to claim or plead in any court that any such action, suit or proceeding
brought in such court has been brought in an inconvenient forum and irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or proceeding or for
recognition and enforcement of any judgment in respect thereof.




          To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of
any court (including any court in the United States, the State of New York or other jurisdiction in
which the Company or any successor thereof may be organized or any political subdivisions thereof)
or from any legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself or its property or
assets, this Indenture, the Securities or any other documents or actions to enforce judgments in
respect of any thereof, then the Company hereby irrevocably waives such immunity, and any defense
based on such immunity, in respect of its obligations under the above-referenced documents and the
transactions contemplated thereby, to the extent permitted by law.





          Section 13.14 Waiver of Jury Trial.



          EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.





          Section 13.15 USA Patriot Act.



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






65









 







information as it may request in order for the Trustee to satisfy the requirements of the USA
Patriot Act.





          Section 13.16 Force Majeure.



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




ARTICLE XIV.




SUBORDINATION OF SECURITIES




          Section 14.01 Agreement of Subordination.



          The Company covenants and agrees, and each holder of Securities issued hereunder by its
acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article XIV; 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 of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.




          The provisions of this Article XIV define the subordination of the Securities, as obligations
of the Company, with respect to Senior Indebtedness of the Company.




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





          Section 14.02 Payment to Securityholders.



          In the event and during the continuation of any default in the payment of principal, premium,
interest or any other payment due on any Senior Indebtedness of the Company continuing beyond the
grace period, if any, specified in the instrument or lease evidencing such Senior Indebtedness of
the Company, then, unless and until such default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with respect to the principal of, or
premium, if any, or interest on the Securities, except sinking fund obligations satisfied by credit
of acquired Securities under Section 3.05 prior to the happening of such default and payments made
pursuant to Article XI hereof from monies deposited with the Trustee pursuant thereto prior to the
happening of such default.







66









 








          Upon any payment by the Company, or distribution of assets of the Company 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 Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof provided for in money
in accordance with its terms, before any payment is made on account of the principal (and premium,
if any) or interest on the Securities (except payments made pursuant to Article XI hereof from
monies deposited with the Trustee pursuant thereto prior to the happening of such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of assets of the Company
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 XIV, shall
(except as aforesaid) be paid by the Company 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 of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness of the Company held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness of the Company may
have been issued, as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness of the Company in full, in money or money’s worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness of the Company,
before any payment or distribution is made to the holders of the Securities or to the Trustee.




          In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee or the holders of the Securities before all Senior
Indebtedness of the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, 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 of the Company or their
representative or representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness of the Company may have been issued, as
their respective interests may appear, as calculated by the Company, for application to the payment
of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all
Senior Indebtedness of the Company in full in money in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness.




          For purposes of this Article XIV, the words, “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company 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 XIV with respect
to the Securities to the payment of all Senior Indebtedness of the Company which may at the time be
outstanding; provided that (i) the Senior Indebtedness of the Company is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness of the Company (other






67









 







than leases) and of leases which are assumed are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or dissolution of the Company
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 X hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 14.02 if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article X hereof. Nothing in this
Section 14.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section
7.06.





          Section 14.03 Subrogation of Securities.



          Subject to the payment in full of all Senior Indebtedness of the Company, the rights of the
holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness
of the Company to receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness of the Company 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 the Company 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 XIV to or for the benefit of the holders of Senior
Indebtedness of the Company by holders of the Securities or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the Company, and the holders of
the Securities, be deemed to be a payment by the Company to or on account of the Senior
Indebtedness of the Company. It is understood that the provisions of this Article XIV 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 of the Company, on the other hand.




          Nothing contained in this Article XIV or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors other than the holders of its
Senior Indebtedness, and the holders of the Securities, the obligation of the Company, 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 Company other than the holders of its 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 XIV of the holders of Senior Indebtedness of the
Company in respect of cash, property or securities of the Company received upon the exercise of any
such remedy.




          Upon any payment or distribution of assets of the Company referred to in this Article XIV, the
Trustee, subject to the provisions of Section 7.01, 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 the Trustee or to the holders of the






68









 







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 Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIV.





          Section 14.04 Authorization by Securityholders.



          Each holder of a Security by its acceptance thereof authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIV appoints the Trustee its attorney-in-fact for any and all such
purposes.





          Section 14.05 Notice to Trustee.



          The Company shall give promptly written notice to a Responsible Officer of the Trustee of any
fact known to the Company 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 XIV.
Notwithstanding the provisions of this Article XIV 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 XIV, 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 Company or a
holder or holders of Senior Indebtedness of the Company or from any trustee therefor; and before
the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01,
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 14.05, 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 Company 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 III or Sections
11.02 or 11.03 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 of the Company (or a trustee
on behalf of such holder) to establish that such notice has been given by a holder of Senior
Indebtedness of the Company 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 of the Company to participate in any payment
or distribution pursuant to this Article XIV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior






69









 







Indebtedness of the Company 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 XIV, 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 14.06 Trustee’s Relation to Senior Indebtedness.



          The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article XIV in respect of any Senior Indebtedness of the Company at any time held by it, to the
same extent as any other holder of Senior Indebtedness of the Company 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 of the Company, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are specifically set forth in
this Article XIV, and no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company 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 of the Company
and the Trustee shall not be liable to any holder of Senior Indebtedness of the Company if it shall
pay over or deliver to holders of Securities, the Company or any other Person money or assets to
which any holder of Senior Indebtedness of the Company shall be entitled by virtue of this Article
XIV or otherwise.





          Section 14.07 No Impairment of Subordination.



          No right of any present or future holder of any Senior Indebtedness of the Company 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 Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be
charged with.





          Section 14.08 Rights of Trustee.



          Nothing in this Article XIV shall apply to claims of or payments to, the Trustee pursuant to
Section 7.06.




[Signatures on following page]






70









 








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




	 	 	 	 	 
	 	THERMO FISHER SCIENTIFIC INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Seth H. Hoogasian 	 
	 	 	Title:  	Senior Vice President, General

Counsel and Secretary 	 
	 





 









 








	 	 	 	 	 
	 	[                                        ] as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 









 








EXHIBIT A




FORM OF CERTIFICATE OF TRANSFER



Thermo Fisher Scientific Inc.

81 Wyman Street

Waltham, Massachusetts 02454

Attention: Seth H. Hoogasian




[Trustee]

[Address]



Re: [insert description of Securities]



Ladies and Gentlemen,





     Reference is hereby made to the Indenture, dated as of           ,           , between Thermo Fisher
Scientific Inc., a Delaware company (the “Company”) and           , a           , as trustee (the “Trustee”),
[as supplemented by that certain supplemental indenture dated as of           ][and the Board Resolution
adopted           ] (together, the “Indenture”). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.            (the “Transferor”) owns and proposes to
transfer the Security or Securities or interest[s] in such Security or Securities specified in
Annex A hereto, in the principal amount of $           in such Security or Securities or interest[s]
(the “Transfer”), to            (the “Transferee”), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:


[CHECK ALL THAT APPLY




          1.     o   Check if Transferee will take delivery of a beneficial interest in the 144A Global Security
or a Definitive Security Pursuant to Rule 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the Transferor reasonably
believed and believes is purchasing the beneficial interest or Definitive Security for its own
account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional buyer” within the
meaning of Rule 144A (a “QIB”) in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of any State of the United
States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Definitive Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global Security and/or the
Definitive Security and in the Indenture and the Securities Act.




          2.      o  Check if Transferee will take delivery of a beneficial interest in the Regulation S Global
Security or a Definitive Security pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities






A-1









 







Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not
being made to a person in the United States and (y) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (z) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904 (b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed Transfer is being made prior to the
expiration of the Distribution Compliance Period, the Transfer is not being made to a U.S. person
(as such is defined in Regulation S) or for the account or benefit of a U.S. person (other than an
initial purchaser of the Securities) and the interest transferred will be held immediately
thereafter through Euroclear or Clearstream. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive
Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Regulation S Global Security and/or the Definitive Security and in the Indenture and
the Securities Act.




          3.      o  Check and complete if Transferee will take delivery of a beneficial interest in a
Definitive Security pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act and any applicable blue sky
securities laws of any State of the United States, and accordingly the Transferor hereby further
certifies that (check one):





          (a)     o   Such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act; or




          (b)     o   Such Transfer is being effected to the Company or a Subsidiary thereof; or




          (c)     o  Such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of the
Securities Act; or




          (d)     o   Such Transfer is being effected to an Institutional Accredited Investor and
pursuant to an exemption from the registration requirements of the Securities Act other than
Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under the Securities
Act and the Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Security or Restricted Definitive Security and the
requirements of the exemption claimed, which certification is supported by a certificate
executed by the Transferee in the form attached as Exhibit C to the Indenture. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
Definitive Security will be subject to the restrictions on



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transfer enumerated in the Private Placement Legend printed on the Definitive Security
and in the Indenture and the Securities Act.



          4.      o  Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global
Security or of an Unrestricted Definitive Security.




          (a)      o  Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture and the Securities Act.




          (b)      o  Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture and the Securities Act.




          (c)      o  Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements
of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws
of any State of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Security will not
be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Securities or Restricted Definitive Securities and in the
Indenture.



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          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 

	 

	 	 	 	Dated:
	 	 	 
	 
	 	 	 	 
	 	 	 
	[Insert Name of Transferor]	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






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ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposed to transfer the following:




[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o     a beneficial interest in the:






	 	(i)	 	o     144A Global Security (CUSIP           ), or
	 
	 	(ii)	 	o     Regulation S Global Security (CUSIP           ), or






	 	(b)	 	o     a Restricted Definitive Security.






	2.	 	After the transfer the Transferee will hold:






	 	(a)	 	o     a beneficial interest in the:






	 	(i)	 	o     144A Global Security (CUSIP           ), or
	 
	 	(ii)	 	o     Regulation S Global Security (CUSIP           ), or
	 
	 	(iii)	 	o     Unrestricted Global Security (CUSIP           ); or






	 	(b)	 	o     a Restricted Definitive Security; or
	 
	 	(c)	 	o     an Unrestricted Definitive Security,




in accordance with the terms of the Indenture.









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EXHIBIT B



FORM OF CERTIFICATE OF EXCHANGE



Thermo Fisher Scientific Inc.

81 Wyman Street

Waltham, Massachusetts 02454

Attention: Seth H. Hoogasian




[Trustee]

[Address of Trustee]



Re: [insert description of the Securities]



Ladies and Gentlemen,




          Reference is hereby made to the Indenture, dated as of                     ,                    , between Thermo
Fisher Scientific Inc., a Delaware company (the “Company”) and           , a           , as
trustee (the “Trustee”) [as supplemented by that certain supplemental indenture dated as of
          ][and the Board Resolution adopted           ] (together, the “Indenture”).
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.



                    , (the “Owner”) owns and proposes to transfer the Security or Securities or interest[s]
in such Security or Securities specified herein, in the principal amount of $           in such Security
or Securities or interest[s] (the “Exchange”). In connection with the Transfer, the Transferor
hereby certifies that:




          1. Exchange of Restricted Definitive Securities or Beneficial Interests in a Restricted Global
Security for Unrestricted Definitive Securities or Beneficial Interests in an Unrestricted Global
Security.





          (a)      o  Check if Exchange is from beneficial interest in a Restricted Global Security to
beneficial interest in an Unrestricted Global Security. In connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Security for a beneficial interest in
an Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions applicable to
the Global Securities and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Security is being acquired in compliance with any applicable blue sky securities laws
of any State of the United States.




          (b)      o  Check if Exchange is from beneficial interest in a Restricted Global Security to
Unrestricted Definitive Security. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Security for an Unrestricted Definitive Security in an equal
principal amount, the Owner hereby certifies (i) the



B-1









 







Definitive Security is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer restrictions applicable
to the Restricted Global Securities and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act and (iv) the
Definitive Security is being acquired in compliance with any applicable blue sky securities
laws of any State of the United States.




          (c)      o  Check if Exchange is from Restricted Definitive Security to beneficial interest in
an Unrestricted Global Security. In connection with the Owner’s Exchange of a Restricted
Definitive Security for a beneficial interest in an Unrestricted Global Security, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Securities and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Security
is being acquired in compliance with any applicable blue sky securities laws of any State of
the United States.




          (d)      o  Check if Exchange is from Restricted Definitive Security to Unrestricted Definitive
Security. In connection with the Owner’s Exchange of a Restricted Definitive Security for
an Unrestricted Definitive Security, the Owner hereby certifies (i) the Unrestricted
Definitive Security is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Security is being acquired in compliance with any applicable blue
sky securities laws of any State of the United States.



          2. Exchange of Restricted Definitive Securities or Beneficial Interests in Restricted Global
Securities for Restricted Definitive Securities or Beneficial Interests in Restricted Global
Securities.





          (a)      o  Check if Exchange is from beneficial interest in a Restricted Global Security to
Restricted Definitive Security. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Security for a Restricted Definitive Security with an equal
principal amount, the Owner hereby certifies that the Restricted Definitive Security is
being acquired for the Owner’s own account without transfer. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive
Security issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Security and in the
Indenture and the Securities Act.



B-2









 






          (b)
       o  Check if Exchange is from Restricted Definitive Security to beneficial interest in
a Restricted Global Security. In connection with the Exchange of the Owner’s Restricted
Definitive Security for a beneficial interest in the: [CHECK ONE] o 144A Global Security or o
Regulation S Global Security with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner’s own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer restrictions applicable
to Restricted Global Securities and pursuant to and in accordance with the Securities Act,
and in compliance with any applicable blue sky securities laws of any State of the United
States. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted Global
Security and in the Indenture and the Securities Act.



          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 

	 	 	 
	[Insert Name of Owner]	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 	 	 





B-3









 






EXHIBIT C




FORM OF CERTIFICATE FROM ACQUIRING

INSTITUTIONAL ACCREDITED INVESTOR



Thermo Fisher Scientific Inc.

81 Wyman Street

Waltham, Massachusetts 02454

Attention: Seth H. Hoogasian




[Trustee]

[Address of Trustee]



Re: [insert description of the Securities]



Ladies and Gentlemen,




               Reference is hereby made to the Indenture, dated as of           ,           , between Thermo Fisher
Scientific Inc., a Delaware company (the “Company”) and           , a           , as trustee (the “Trustee”)
[as supplemented by that certain supplemental indenture dated as of           ][and the Board Resolution
adopted           ] (together, the “Indenture”). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.




               In connection with our proposed purchase of $           aggregate principal amount of: (a) a
beneficial interest in a Global Security, or (b) a Definitive Security, we confirm that:





          1. We understand that any subsequent transfer of the Securities or any interest therein
is subject to certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the
Securities or any interest therein except in compliance with, such restrictions and
conditions and the United States Securities Act of 1933, as amended (the “Securities Act”).




          2. We understand that the offer and sale of the Securities have not been registered
under the Securities Act, and that the Securities and any interest therein may not be
offered or sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated, that if we
should sell the Securities or any interest therein, we will do so only (1) in the United
States to a person whom the seller reasonably believes is a “qualified institutional buyer”
(as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements
of Rule 144A, (2) outside the United States in an offshore transaction in accordance with
Rule 904 under the Securities Act, (3) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available) or (4) pursuant to an
effective registration statement under the Securities Act, in each of cases (1) through (4)
in accordance with any applicable securities laws of any state of the United States, and we
further agree to notify any purchaser of the Securities from us of the resale restrictions
referred to above.



C-1









 






          3. We understand that, on any proposed resale of the Securities or beneficial interest
therein, we will be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to confirm that
the proposed sale complies with the foregoing restrictions. We further understand that any
subsequent transfer by us of the Securities or beneficial interest therein acquired by us
must be effected through one of the initial purchasers of the Securities.




          4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment.




          5. We are acquiring the Securities or beneficial interest therein purchased by us for
our own account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion.



               You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 

	 

	 	 	 	Dated:           ,           
	 	 	 
	[Insert Name of Accredited Investor]	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 







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