Exhibit 4.4


 


EPIQ SYSTEMS, INC.,


Issuer


 


AND


 


WELLS FARGO
BANK, NATIONAL ASSOCIATION,


Trustee


 


INDENTURE


 


Dated as of                
      ,
2007


 


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.

  	
  4

  
	
  Section 2.02

  	
  Form of Securities and
  Trustee’s Certificate.

  	
  7

  
	
  Section 2.03

  	
  Denominations: Provisions for
  Payment.

  	
  7

  
	
  Section 2.04

  	
  Execution and Authentication.

  	
  8

  
	
  Section 2.05

  	
  Registration of Transfer and
  Exchange.

  	
  9

  
	
  Section 2.06

  	
  Temporary Securities.

  	
  10

  
	
  Section 2.07

  	
  Mutilated, Destroyed, Lost or
  Stolen Securities.

  	
  10

  
	
  Section 2.08

  	
  Cancellation.

  	
  11

  
	
  Section 2.09

  	
  Benefits of Indenture.

  	
  11

  
	
  Section 2.10

  	
  Authenticating Agent.

  	
  12

  
	
  Section 2.11

  	
  Global Securities.

  	
  12

  
	
  ARTICLE III

  	
  REDEMPTION OF SECURITIES AND
  SINKING FUND PROVISIONS

  	
   

  
	
  Section 3.01

  	
  Redemption.

  	
  13

  
	
  Section 3.02

  	
  Notice of Redemption.

  	
  13

  
	
  Section 3.03

  	
  Payment Upon Redemption.

  	
  14

  
	
  Section 3.04

  	
  Sinking Fund.

  	
  15

  
	
  Section 3.05

  	
  Satisfaction of Sinking Fund
  Payments with Securities.

  	
  15

  
	
  Section 3.06

  	
  Redemption of Securities for
  Sinking Fund.

  	
  15

  
	
  ARTICLE IV

  	
  COVENANTS

  	
   

  
	
  Section 4.01

  	
  Payment of Principal, Premium and
  Interest.

  	
  16

  
	
  Section 4.02

  	
  Maintenance of Office or Agency.

  	
  16

  
	
  Section 4.03

  	
  Paying Agents.

  	
  16

  
	
  Section 4.04

  	
  Appointment to Fill Vacancy in
  Office of Trustee.

  	
  17

  
	
  Section 4.05

  	
  Compliance with Consolidation
  Provisions.

  	
  17

  
	
  Section 4.06

  	
  Calculation of Original Issue
  Discount.

  	
  17

  
	
  ARTICLE V

  	
  SECURITYHOLDERS’ LISTS AND REPORTS
  BY THE COMPANY AND THE TRUSTEE

  	
   

  
	
  Section 5.01

  	
  Company to Furnish Trustee Names
  and Addresses of Securityholders.

  	
  18

  
	
  Section 5.02

  	
  Preservation Of Information;
  Communications With Securityholders.

  	
  18

  
	
  Section 5.03

  	
  Reports by the Company.

  	
  18

  
	
  Section 5.04

  	
  Reports by the Trustee.

  	
  18

  
	
  ARTICLE VI

  	
  REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
   

  
	
  Section 6.01

  	
  Events of Default.

  	
  19

  
	
  Section 6.02

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee.

  	
  21

  
	
  Section 6.03

  	
  Application of Moneys or Property
  Collected.

  	
  22

  
	
  Section 6.04

  	
  Limitation on Suits.

  	
  22

  
	
  Section 6.05

  	
  Rights and Remedies Cumulative;
  Delay or Omission Not Waiver.

  	
  23

  
	
  Section 6.06

  	
  Control by Securityholders.

  	
  23

  
	
  Section 6.07

  	
  Undertaking to Pay Costs.

  	
  24

  
	
  ARTICLE VII

  	
  CONCERNING THE TRUSTEE

  	
   

  
	
  Section 7.01

  	
  Certain Duties and
  Responsibilities of Trustee.

  	
  24

  
	
  Section 7.02

  	
  Certain Rights of Trustee.

  	
  26

  
	
  Section 7.03

  	
  Trustee Not Responsible for
  Recitals or Issuance or Securities.

  	
  27

  



 


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  Section 7.04

  	
  May Hold Securities.

  	
  27

  
	
  Section 7.05

  	
  Moneys Held in Trust.

  	
  27

  
	
  Section 7.06

  	
  Compensation and Reimbursement.

  	
  27

  
	
  Section 7.07

  	
  Reliance on Officers’ Certificate
  and Opinions.

  	
  28

  
	
  Section 7.08

  	
  Disqualification; Conflicting
  Interests.

  	
  29

  
	
  Section 7.09

  	
  Corporate Trustee Required;
  Eligibility.

  	
  29

  
	
  Section 7.10

  	
  Resignation and Removal;
  Appointment of Successor.

  	
  29

  
	
  Section 7.11

  	
  Acceptance of Appointment By
  Successor.

  	
  30

  
	
  Section 7.12

  	
  Merger, Conversion, Consolidation
  or Succession to Business.

  	
  32

  
	
  Section 7.13

  	
  Preferential Collection of Claims
  Against the Company.

  	
  32

  
	
  Section 7.14

  	
  Notice of Default

  	
  32

  
	
  ARTICLE VIII

  	
  CONCERNING THE SECURITYHOLDERS

  	
   

  
	
  Section 8.01

  	
  Evidence of Action by
  Securityholders.

  	
  32

  
	
  Section 8.02

  	
  Proof of Execution by
  Securityholders.

  	
  33

  
	
  Section 8.03

  	
  Who May be Deemed Owners.

  	
  33

  
	
  Section 8.04

  	
  Certain Securities Owned by
  Company Disregarded.

  	
  33

  
	
  Section 8.05

  	
  Actions Binding on Future
  Securityholders.

  	
  34

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
  Section 9.01

  	
  Supplemental Indentures Without
  the Consent of Securityholders.

  	
  34

  
	
  Section 9.02

  	
  Supplemental Indentures With
  Consent of Securityholders.

  	
  35

  
	
  Section 9.03

  	
  Effect of Supplemental Indentures.

  	
  35

  
	
  Section 9.04

  	
  Securities Affected by
  Supplemental Indentures.

  	
  36

  
	
  Section 9.05

  	
  Execution of Supplemental
  Indentures.

  	
  36

  
	
  ARTICLE X

  	
  SUCCESSOR ENTITY

  	
   

  
	
  Section 10.01

  	
  Company
  May Consolidate, Etc.

  	
  36

  
	
  Section 10.02

  	
  Successor Entity Substituted.

  	
  37

  
	
  Section 10.03

  	
  Evidence of
  Consolidation, Etc. to Trustee.

  	
  37

  
	
  ARTICLE XI

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
  Section 11.01

  	
  Satisfaction and Discharge of
  Indenture.

  	
  37

  
	
  Section 11.02

  	
  Discharge of Obligations.

  	
  38

  
	
  Section 11.03

  	
  Deposited Moneys to be Held in
  Trust.

  	
  38

  
	
  Section 11.04

  	
  Payment of Moneys Held by Paying
  Agents.

  	
  38

  
	
  Section 11.05

  	
  Repayment to Company.

  	
  39

  
	
  ARTICLE XII

  	
  IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
  Section 12.01

  	
  No Recourse.

  	
  39

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
  Section 13.01

  	
  Effect on Successors and Assigns.

  	
  39

  
	
  Section 13.02

  	
  Actions by Successor.

  	
  40

  
	
  Section 13.03

  	
  Surrender of Company Powers.

  	
  40

  
	
  Section 13.04

  	
  Notices.

  	
  40

  
	
  Section 13.05

  	
  Governing Law.

  	
  40

  
	
  Section 13.06

  	
  Force Majeure.

  	
  40

  
	
  Section 13.07

  	
  USA Patriot Act.

  	
  40

  
	
  Section 13.08

  	
  Treatment of Securities as Debt.

  	
  40

  
	
  Section 13.09

  	
  Certificates and Opinions as to
  Conditions Precedent.

  	
  40

  
	
  Section 13.10

  	
  Payments on Business Days.

  	
  41

  
	
  Section 13.11

  	
  Conflict with Trust Indenture Act.

  	
  41

  
	
  Section 13.12

  	
  Counterparts.

  	
  41

  
	
  Section 13.13

  	
  Separability.

  	
  41

  
	
  Section 13.14

  	
  Compliance Certificates.

  	
  41

  
	
  ARTICLE XIV

  	
  SUBORDINATION OF SECURITIES

  	
   

  
	
  Section 14.01

  	
  Subordination Terms.

  	
  42

  



 


Subordinated Indenture


 


ii

















 


	
  Section 14.02

  	
  Authorization to Effect Subordination.

  	
  42

  



 






(1)           This
Table of Contents does not constitute part of the Indenture and shall not have
any bearing on the interpretation of any of its terms or provisions.


 


iii

















 


INDENTURE


 


INDENTURE, dated as of
                 
       , 2007, among Epiq Systems, Inc.,
a Missouri corporation (the “Company”), and Wells Fargo Bank,  National Association, a national banking
association organized and existing under the laws of the United States of
America, as trustee (the “Trustee”):


 


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


 


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


 


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


 


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


 


ARTICLE I


 


DEFINITIONS


 


Section 1.01 Definitions of Terms.


 


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


 


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


 


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


 


“Board of Directors” means the Board of Directors of the Company or any duly
authorized committee of the 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 the Board of
Directors and to be in full force and effect on the date of such certification.


 

















 


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


 


“Certificate” means a certificate signed by any Officer. The Certificate
need not comply with the provisions of Section 13.09.


 


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


 


“Corporate Trust Office” means the office of the Trustee at which, at any particular
time, its corporate trust business shall be principally administered, which
office at the date hereof is located at Wells Fargo Bank, National Association,
45 Broadway, 14th floor, New York, New York 10006,
Attention:  Corporate Trust Services — Administrator for Epiq Systems, Inc.


 


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


 


“Depositary” means,
with respect to Securities of any series for which the Company shall determine
that such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Securities and Exchange Act of 1934,
as amended (the “Exchange Act”),
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.


 


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


 


“Global Security” means, with respect to any series of Securities, 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 the Indenture,
which shall be registered in the name of the Depositary or its nominee.


 


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


 


2

















 


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


 


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


 


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


 


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


 


“Officers’ Certificate” means a certificate signed by any two Officers and delivered
to the Trustee. Each such certificate shall include the statements provided for
in Section 13.09, if and to the extent required by the provisions thereof.


 


“Opinion of Counsel” means a written opinion, subject to customary exceptions,
from legal counsel who is reasonably acceptable to the Trustee that is
delivered to the Trustee in accordance with the terms hereof. The counsel may
be an employee of or counsel to the Company or the Trustee. Each such opinion
shall include the statements provided for in Section 13.09 if and to the
extent required by the provisions thereof.


 


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


 


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


 


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


 


“Responsible Officer” means any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, any trust
officer or assistant trust officer, or any other officer of the Trustee who
customarily performs functions similar to those performed by the


 


3

















 


Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such Person’s knowledge of and familiarity with the particular
subject, and who shall have direct responsibility for the administration of
this Indenture.


 


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


 


“Security 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
Security Register kept for that purpose in accordance with the terms of this
Indenture.


 


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


 


“Subsidiary” means,
with respect to any Person, (i) any corporation at least a majority of
whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or
by one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such Person or any
of its Subsidiaries is a general partner.


 


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


 


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


 


“Voting Stock”, as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of 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 or pursuant to one or more indentures supplemental hereto.
Prior to the initial issuance of Securities of any series, there shall be
established in or pursuant to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto:


 


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


 


4
















 


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


 


(3)                                  the date or dates on which the principal of the Securities
of the series is payable, any original issue discount that may apply to the
Securities of that series upon their issuance, the principal amount due at
maturity, and the place(s) of payment;


 


(4)                                  the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or rates, if any;


 


(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, the place(s) of payment, and
the record date for the determination of holders to whom interest is payable on
any such Interest Payment Dates or the manner of determination of such record
dates;


 


(6)                                  the right, if any, to extend the interest payment periods
and the duration of such extension;


 


(7)                                  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;


 


(8)                                  the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, mandatory redemption, or
analogous provisions (including payments made in cash in satisfaction 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 or purchased,
in whole or in part, pursuant to such obligation;


 


(9)                                  the form of the Securities of the series including the form
of the Certificate of Authentication for such series;


 


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


 


(11)                            any and all other terms (including terms, to the extent
applicable, relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with respect to such
Securities) with respect to such series (which terms shall not be inconsistent
with the terms of this Indenture, as amended by any supplemental indenture)
including any terms which may be required by


 


5

















 


or advisable under United States
laws or regulations or advisable in connection with the marketing of Securities
of that series;


 


(12)                            whether the Securities are issuable as a Global Security
and, in such case, the terms and the identity of the Depositary for such
series;


 


(13)                            whether the Securities will be convertible into or
exchangeable for shares of common stock or other securities of the Company or
any other Person and, if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may be
adjusted, any mandatory or optional (at the Company’s option or the holders’
option) conversion or exchange features, and the applicable conversion or
exchange period;


 


(14)                            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;


 


(15)                            any additional or different Events of Default or restrictive
covenants (which may include, among other restrictions, restrictions on the
Company’s ability or the ability of the Company’s Subsidiaries to: incur
additional indebtedness; issue additional securities; create liens; pay
dividends or make distributions in respect of their capital stock; redeem
capital stock; place restrictions on such Subsidiaries placing restrictions on
their ability to pay dividends, make distributions or transfer assets; make
investments or other restricted payments; sell or otherwise dispose of assets;
enter into sale-leaseback transactions; engage in transactions with stockholders
and affiliates; issue or sell stock of their Subsidiaries; or effect a
consolidation or merger) or financial covenants (which may include, among other
financial covenants, financial covenants that require the Company and its
Subsidiaries to maintain specified interest coverage, fixed charge, cash
flow-based or asset-based ratios) provided for with respect to the Securities
of the series;


 


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


 


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


 


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


 


(19)                            the subordination terms of the Securities of the series.


 


6

















 


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


 


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


 


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


 


Section 2.02 Form of Securities and Trustee’s Certificate.


 


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


 


Section 2.03 Denominations: Provisions for Payment.


 


The Securities shall be issuable as
registered Securities and in the denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, subject to Section 2.01 (a)(10).
The Securities of a particular series shall bear interest payable on the dates
and at the rate specified with respect to that series. Subject to Section 2.01(a)(16),
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 the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or agency of
the Company maintained for that purpose. Each Security shall be dated the date
of its authentication. Interest on the Securities shall be computed on the
basis of a 360-day year composed of twelve 30-day months.


 


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


 


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


 


7

















 


(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 an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Company shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Company shall
promptly notify the Trustee of such special record date and, in the name and at
the expense of the Company, the Trustee 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 (as hereinafter defined), not
less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been 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.


 


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


 


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


 


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


 


Section 2.04 Execution and Authentication.


 


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


 


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


 


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


 


In authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the form and terms thereof have been established in conformity with the
provisions of this Indenture.


 


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


 


Section 2.05 Registration of Transfer and Exchange.


 


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


 


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


 


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


 


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


 


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


 


(d)                                 The Company 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, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption, other than the unredeemed portion of any such
Securities being redeemed in part. The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11 hereof.


 


Section 2.06 Temporary Securities.


 


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


 


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, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a
new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen. In
every case the


 


10

















 


applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
the applicant’s Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.


 


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


 


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


 


Section 2.08 Cancellation.


 


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


 


Section 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 (and,
with respect to the provisions of Article Fourteen, the holders of any
indebtedness of the Company to which the Securities of any series are
subordinated) 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 (and, with
respect to the provisions of Article Fourteen, the holders of any
indebtedness of the Company to which the Securities of any series are
subordinated).


 


11

















 


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


 


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


 


Section 2.11 Global Securities.


 


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


 


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


 


(c)                                  If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is
not appointed by the Company within 90


 


12

















 


days after the Company receives such
notice or becomes aware of such condition, as the case may be, or if an Event
of Default has occurred and is continuing and the Company has received a
request from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and
subject to Section 2.04, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the
Securities of such series. In such event the Company will execute and, subject
to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities
in definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.


 


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


 


(e)                                  Neither the Trustee nor any Agent shall have any responsibility for any
actions taken or not taken by the Depositary.


 


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
hereof.


 


Section 3.02 Notice of Redemption.


 


(a)                                  In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any series in
accordance with any right the Company reserved for itself to do so pursuant to Section 2.01
hereof, the Company shall, or shall cause the Trustee to, give notice of such
redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 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


 


13
















 


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 Officers’ Certificate evidencing compliance with any such
restriction.


 


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


 


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


 


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


 


Section 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 and
interest on such Securities


 


14

















 


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


 


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


 


Section 3.04 Sinking Fund.


 


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


 


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


 


Section 3.05 Satisfaction of Sinking Fund Payments with Securities.


 


The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
as directed in writing by the Company 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 45 days prior to each
sinking fund payment date for any series of Securities (unless a shorter period
shall be satisfactory to the Trustee), the Company will deliver to the Trustee
an Officers’ Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and
will, together with such Officers’


 


15

















 


Certificate, deliver to the Trustee
any Securities to be so delivered. Not less than 30 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


 


COVENANTS


 


Section 4.01 Payment of Principal, Premium and Interest.


 


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


 


Section 4.02 Maintenance of Office or Agency.


 


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


 


Section 4.03 Paying Agents.


 


(a)                                  If the Company shall appoint one or more paying agents for
all or any series of the Securities, other than the Trustee, the Company will
promptly notify the Trustee in writing of the name and address of each such
agent and it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section: (1) that it will hold all sums held by
it as such agent for the payment of the principal of (and premium, if any) or
interest on the Securities of that series (whether such sums have been paid to
it by the Company or by any other obligor of such Securities) in trust for the
benefit of the Persons entitled thereto; (2) that it will give the Trustee
notice of any failure by the Company (or by any other obligor of such
Securities) to make any payment of the principal of (and premium, if any) or
interest on the Securities of that series when the same shall be due and
payable; (3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and (4) that it will perform all other
duties of paying agent as set forth in this Indenture.


 


16

















 


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


 


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


 


Section 4.04 Appointment to Fill Vacancy in Office of Trustee.


 


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


 


Section 4.05 Compliance with Consolidation Provisions.


 


The Company will not, while any of
the Securities remain Outstanding, consolidate with or merge into any other
Person, in either case where the Company is not the survivor of such
transaction, or sell or convey all or substantially all of its property to any
other Person unless the provisions of Article Ten hereof are complied
with.


 


Section 4.06 Calculation of Original Issue Discount.


 


The Company shall file with the
Trustee within 20 days following the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the
end of such year and (ii) such other specific information relating to such
original issue discount as may be relevant under the Code.


 


17

















 


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) within 10 days after each regular record
date (as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of
Securities as of such regular record date, provided that the Company shall not
be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b)at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 10 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)                                 The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.


 


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


 


Section 5.03 Reports by the Company.


 


The Company covenants and agrees to
provide a copy to the Trustee, copies of all periodic reports and proxy and
information, statements filed by the Company with the Securities and Exchange
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; provided, however, the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and received
confidential treatment by the SEC. The Company shall also comply with the
requirements of Section 314 of the Trust Indenture Act, but only to the
extent then applicable to the Company.


 


Section 5.04 Reports by the Trustee.


 


(a)                                  On or before July 1 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding May 1,
if and to the extent required under Section 313(a) of the Trust
Indenture Act.


 


18

















 


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


 


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


 


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:


 


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


 


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


 


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


 


19

















 


(4)                                  Any other Event of Default provided in the supplemental
indenture or pursuant to a Board Resolution under which such series of
Securities is issued or in the form of Security for such series.


 


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


 


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


 


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


 


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


 


20

















 


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.


 


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


 


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


 


(c)                                  In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee
shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire
amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and


 


21
















 


for any additional amount that may
become due and payable by the Company after such date, and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under Section 7.06.


 


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


 


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


 


Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of that series or the rights
of any 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 Moneys or Property Collected.


 


Any moneys or property collected by
the Trustee pursuant to this Article with respect to a particular series
of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys or
property on account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06; SECOND: To the payment
of all indebtedness of the Company to which such series of Securities is
subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid upon Securities of
such series for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively;
and FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto, as a court of competent jurisdiction
shall direct.


 


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


 


22

















 


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,
as hereinbefore provided; (ii) the holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such satisfactory indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby; (iv) the Trustee for 90 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action,
suit or proceeding and (v) during such 90 day period, the holders of a
majority in principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.


 


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


 


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


 


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


 


Section 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


 


23

















 


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


 


Section 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, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10% in aggregate
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security of such series,
on or after the respective due dates expressed in such Security or established
pursuant to this Indenture.


 


ARTICLE VII


 


CONCERNING THE TRUSTEE


 


Section 7.01 Certain Duties and Responsibilities of Trustee.


 


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


 


24

















 


skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.


 


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


 


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


 


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


 


(B)                                in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Securities of such series conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the form required 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 form required of this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein) ;


 


(ii)                                  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;


 


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


 


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


 


25

















 


Section 7.02 Certain Rights of Trustee.


 


Except as otherwise provided in Section 7.01:


 


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


 


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


 


(c)                                  The Trustee may consult with counsel and the written 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
satisfactory security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Securities (that has not been cured
or waived), to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;


 


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


 


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


 


26

















 


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


 


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


 


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


 


(j)             The Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
(i.e. an Incumbency Certificate).


 


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


 


In addition, the Trustee shall not
be deemed to have knowledge of any Default or Event of Default except (1) any
Event of Default occurring pursuant to Sections 6.01(a)(l) and 6.01(a)(2) or
(2) any Default or Event of Default of which the Trustee shall have
received written notification in the manner set forth in this Indenture or a
Responsible Officer of the Trustee shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section 5.03
is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any
information contained therein, or determinable from information contained
therein including the Company’s compliance with any of their covenants
thereunder (as to which the Trustee is entitled to rely conclusively on an
Officers’ Certificate).


 


Section 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities.


 


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


 


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


 


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


 


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.


 


Section 7.05 Moneys Held in Trust.


 


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


 


Section 7.06 Compensation and Reimbursement.


 


(a)                                  The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, 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


 


27

















 


Company and the Trustee may from
time to time 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, and, except as otherwise expressly
provided herein, the Company will pay or reimburse the Trustee upon its request
for all expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ), except any such expense, disbursement or
advance as may arise from its negligence or bad faith and except as the Company
and Trustee may from time to time agree in writing. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence 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 in
the premises.


 


(b)                                 The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute indebtedness of the
Company to which the Securities are subordinated. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such.


 


(c)                                  The Company covenants and agrees to indemnify the Trustee
for, and hold it harmless from and against, any loss, liability or expense
incurred by it arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of its
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder except to the extent any such loss, liability or
expense may be attributable to its negligence, willful misconduct or bad faith.


 


(d)                                 In addition and without prejudice to the rights provided to
the Trustee under any of the provisions of this Indenture, when the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 6.01(4) or Section 6.01(5), the expenses
(including the charges and expenses of its counsel) and the compensation for
the services are intended to constitute expenses of administration under any
applicable Federal and State bankruptcy, insolvency or other similar law.


 


(e)                                  The Company’s obligations under this Section 7.06 and
the lien referred to in Section 7.06(b) shall survive the resignation
or removal of the Trustee, the discharge of the Company’s obligations under Article Eleven
of this Indenture and/or the termination of this Indenture.


 


Section 7.07 Reliance on Officers’ Certificate and Opinions.


 


Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it reasonably necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action
hereunder, such matter (unless other


 


28
















 


evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers’ Certificate or Opinion of Counsel, or both, delivered to the
Trustee and such certificate or opinion, 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 of America or any state or territory thereof or of the District
of Columbia, or a corporation or other Person permitted to act as trustee by
the Securities and Exchange Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.


 


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


 


Section 7.10 Resignation and Removal; Appointment of Successor.


 


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


 


29

















 


(b)                                 In case at any time any one of the following shall occur: (i) the
Trustee shall fail to comply with the provisions of Section 7.08 after
written request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months; or (ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or (iii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; then, in any such case, the Company may remove the
Trustee with respect to all Securities and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may, on behalf
of that holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.


 


(c)                                  The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
in writing not less than 30 days prior the effective date of such removal and
may appoint a successor Trustee for such series with the consent of the
Company.


 


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


 


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


 


Section 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; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.


 


30

















 


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


 


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


 


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


 


(e)                                  Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit or cause to be transmitted
a notice of the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within
ten days after acceptance of


 


31

















 


appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the
expense of the Company.


 


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 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.


 


Section 7.14 Notice of Default


 


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


 


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.


 


If the Company shall solicit from
the Securityholders of any series any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its
option, as evidenced by an Officers’ Certificate, fix in advance a record date
for such series for the determination of


 


32

















 


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


 


Section 8.02 Proof of Execution by Securityholders.


 


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


 


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


 


(b)                                 The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof. The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.


 


Section 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.


 


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


 


33

















 


indirect common control with the
Company or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.


 


Section 8.05 Actions Binding on Future Securityholders.


 


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


 


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


 


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


 


(b)                                  to comply with Article Ten;


 


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


 


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


 


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


 


34

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.03 Effect of Supplemental Indentures.


 


Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01,
this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and


 


35

















 


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


 


Section 9.05 Execution of Supplemental Indentures.


 


Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01,
will be entitled to receive and will be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating that any supplemental
indenture executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution
thereof.


 


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


 


ARTICLE X


 


SUCCESSOR ENTITY


 


Section 10.01 Company May Consolidate, Etc.


 


Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if


 


36

















 


the Company is not the survivor of
such transaction), sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (premium, if any) and interest on all of
the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with respect to each
series or established with respect to such series pursuant to Section 2.01
to be kept or performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.


 


Section 10.02 Successor Entity Substituted.


 


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


 


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


 


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


 


Section 10.03 Evidence of Consolidation, Etc. to Trustee.


 


The Trustee, subject to the
provisions of Section 7.01, shall receive and be entitled to rely upon an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other disposition,
and any such assumption, comply with the provisions of this Article.


 


ARTICLE XI


 


SATISFACTION AND DISCHARGE


 


Section 11.01 Satisfaction and Discharge of Indenture.


 


If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a series
theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and
that shall have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and
thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due and


 


37

















 


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


 


Section 11.02 Discharge of Obligations.


 


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


 


Thereafter, Sections 7.06 and 11.05
shall survive.


 


Section 11.03 Deposited Moneys to be Held in Trust.


 


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


 


Section 11.04 Payment of Moneys Held by Paying Agents.


 


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


 


38
















 


Section 11.05 Repayment to Company.


 


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


 


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


 


ARTICLE XIII


 


MISCELLANEOUS PROVISIONS


 


Section 13.01 Effect on Successors and Assigns.


 


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


 


39

















 


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 successor of
the Company.


 


Section 13.03 Surrender of Company Powers.


 


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


 


Section 13.04 Notices.


 


Except as otherwise expressly
provided herein, any notice, request or demand that by any provision of this
Indenture is required or permitted to be given, made or served by the Trustee
or by the holders of Securities or by any other Person pursuant to this
Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in
writing by the Company with the Trustee), as follows:  501 Kansas Avenue,
Kansas City, Kansas 66105.  Any notice, election, request or demand by the
Company or any Securityholder or by any other Person pursuant to this Indenture
to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of
the Trustee.


 


Section 13.05 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, except to the extent that the Trust Indenture Act is applicable
without regard to conflicts of laws principles thereof.


 


Section 13.06 Force Majeure.


 


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 that are consistent
with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.


 


Section 13.07
USA Patriot Act.


 


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


 


Section 13.08 Treatment of Securities as Debt.


 


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


 


Section 13.09 Certificates and Opinions as to Conditions Precedent.


 


(a)                                  Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.14) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.


 


(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 (i) a statement that the Person
making such certificate or opinion


 


40

















 


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


 


Section 13.10 Payments on Business Days.


 


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


 


Section 13.11 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 13.12 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 13.13 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 13.14 Compliance Certificates.


 


The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities
of any series were outstanding, a compliance certificate stating whether or not
the signer knows of any Default or Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal
executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the
Company and the Company’s performance under this Indenture and that the Company
has complied with all conditions and covenants under this Indenture. For
purposes of this Section 13.14, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture. If the officer of the Company signing such certificate has
knowledge of such a Default or Event of Default, the certificate shall describe
any such Default or Event of Default and its status.


 


41

















 


ARTICLE XIV


 


SUBORDINATION OF SECURITIES


 


Section 14.01 Subordination Terms.


 


The payment by the Company of the
principal of, premium, if any, and interest on any series of securities issued
hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Securities.


 


Section 14.02 Authorization to Effect Subordination.


 


Each Securityholder of a Security by
his acceptance thereof authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate, as between the
holders of senior debt and the Securityholders, the subordination as provided
in this Article Fourteen and as set forth in any indenture supplemental
hereto, and appoints the Trustee his attorney-in-fact for any and all such
purposes.


 


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


 


	
   

  	
  EPIQ SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth M. Braham

  
	
   

  	
  Title:

  	
  Executive Vice President and Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


42

















 


CROSS-REFERENCE
TABLE (1)


 


	
  Section of Trust Indenture Act of 1939, as Amended

  	
   

  	
  Section of Indenture

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13

  
	
  311(b)

  	
   

  	
  7.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.14

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.09(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.09(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.11

  



 






(1)          
This Cross-Reference Table does not constitute part of the Indenture and shall
not have any bearing on the interpretation of any of its terms or provisions.


 


43