Exhibit 4.1


 


ARES CAPITAL CORPORATION


 


(Issuer)


 


and


 


U.S. Bank National Association


 


(Trustee)


 


 


Indenture


 


Dated as of October 21, 2010


 


Providing for the Issuance


 


of


 


Debt Securities


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE ONE DEFINITIONS AND OTHER
  PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Compliance Certificates

  	
  10

  
	
  Section 1.03

  	
  Form of Documents Delivered to Trustee

  	
  11

  
	
  Section 1.04

  	
  Acts of Holders

  	
  11

  
	
  Section 1.05

  	
  Notices, Etc., to Trustee and Company

  	
  13

  
	
  Section 1.06

  	
  Notice to Holders; Waiver

  	
  13

  
	
  Section 1.07

  	
  Effect of Headings and Table of Contents

  	
  14

  
	
  Section 1.08

  	
  Successors and Assigns

  	
  14

  
	
  Section 1.09

  	
  Separability Clause

  	
  14

  
	
  Section 1.10

  	
  Benefits of Indenture

  	
  14

  
	
  Section 1.11

  	
  Governing Law

  	
  15

  
	
  Section 1.12

  	
  Legal Holidays

  	
  15

  
	
  Section 1.13

  	
  Submission to Jurisdiction

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO
  SECURITIES FORMS

  	
  15

  
	
   

  	
   

  
	
  Section 2.01

  	
  Forms of Securities

  	
  15

  
	
  Section 2.02

  	
  Form of Trustee’s
  Certificate of Authentication

  	
  16

  
	
  Section 2.03

  	
  Securities Issuable in Global Form

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE
  THE SECURITIES

  	
  17

  
	
   

  	
   

  
	
  Section 3.01

  	
  Amount Unlimited; Issuable in Series

  	
  17

  
	
  Section 3.02

  	
  Denominations

  	
  21

  
	
  Section 3.03

  	
  Execution, Authentication, Delivery and Dating

  	
  21

  
	
  Section 3.04

  	
  Temporary Securities

  	
  23

  
	
  Section 3.05

  	
  Registration, Registration of Transfer and Exchange

  	
  25

  
	
  Section 3.06

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  28

  
	
  Section 3.07

  	
  Payment of Interest; Interest Rights Preserved; Optional
  Interest Reset

  	
  29

  
	
  Section 3.08

  	
  Optional Extension of Maturity

  	
  31

  
	
  Section 3.09

  	
  Persons Deemed Owners

  	
  32

  
	
  Section 3.10

  	
  Cancellation

  	
  33

  
	
  Section 3.11

  	
  Computation of Interest

  	
  33

  
	
  Section 3.12

  	
  Currency and Manner of Payments in Respect of Securities

  	
  33

  
	
  Section 3.13

  	
  Appointment and Resignation of Successor Exchange Rate
  Agent

  	
  36

  
	
  Section 3.14

  	
  CUSIP Numbers

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR
  SATISFACTION AND DISCHARGE

  	
  37

  
	
   

  	
   

  
	
  Section 4.01

  	
  Satisfaction and Discharge of Indenture

  	
  37

  
	
  Section 4.02

  	
  Application of Trust Funds

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE
  REMEDIES

  	
  38

  
	
   

  	
   

  
	
  Section 5.01

  	
  Events of Default

  	
  38

  
	
  Section 5.02

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  40

  
	
  Section 5.03

  	
  Collection of Indebtedness and Suits for Enforcement by
  Trustee

  	
  41

  
	
  Section 5.04

  	
  Trustee May File Proofs of Claim

  	
  41

  
	
  Section 5.05

  	
  Trustee May Enforce Claims Without Possession of
  Securities or Coupons

  	
  42

  
	
  Section 5.06

  	
  Application of Money Collected

  	
  42

  



 


i

















 


	
  Section 5.07

  	
  Limitation on Suits

  	
  43

  
	
  Section 5.08

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest

  	
  44

  
	
  Section 5.09

  	
  Restoration of Rights and Remedies

  	
  44

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  44

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  44

  
	
  Section 5.12

  	
  Control by Holders of Securities

  	
  44

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  45

  
	
  Section 5.14

  	
  Waiver of Stay or Extension Laws

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX
  THE TRUSTEE

  	
  45

  
	
   

  	
   

  
	
  Section 6.01

  	
  Notice of Defaults

  	
  45

  
	
  Section 6.02

  	
  Certain Rights of Trustee

  	
  46

  
	
  Section 6.03

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  48

  
	
  Section 6.04

  	
  May Hold Securities

  	
  48

  
	
  Section 6.05

  	
  Money Held in Trust

  	
  49

  
	
  Section 6.06

  	
  Compensation and Reimbursement and Indemnification of
  Trustee

  	
  49

  
	
  Section 6.07

  	
  Corporate Trustee Required; Eligibility

  	
  49

  
	
  Section 6.08

  	
  Disqualification; Conflicting Interests

  	
  50

  
	
  Section 6.09

  	
  Resignation and Removal; Appointment of Successor

  	
  50

  
	
  Section 6.10

  	
  Acceptance of Appointment by Successor

  	
  51

  
	
  Section 6.11

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  52

  
	
  Section 6.12

  	
  Appointment of Authenticating Agent

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN
  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
  COMPANY

  	
  54

  
	
   

  	
   

  
	
  Section 7.01

  	
  Disclosure of Names and Addresses of Holders

  	
  54

  
	
  Section 7.02

  	
  Preservation of Information; Communications to Holders

  	
  54

  
	
  Section 7.03

  	
  Reports by Trustee

  	
  55

  
	
  Section 7.04

  	
  Reports by Company

  	
  55

  
	
  Section 7.05

  	
  Calculation of Original Issue Discount

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT
  CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER

  	
  56

  
	
   

  	
   

  
	
  Section 8.01

  	
  Company May Consolidate, Etc., Only on Certain
  Terms

  	
  56

  
	
  Section 8.02

  	
  Successor Person Substituted

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE
  SUPPLEMENTAL INDENTURES

  	
  56

  
	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental Indentures Without Consent of Holders

  	
  56

  
	
  Section 9.02

  	
  Supplemental Indentures with Consent of Holders

  	
  58

  
	
  Section 9.03

  	
  Execution of Supplemental Indentures

  	
  59

  
	
  Section 9.04

  	
  Effect of Supplemental Indentures

  	
  59

  
	
  Section 9.05

  	
  Conformity with Trust Indenture Act

  	
  59

  
	
  Section 9.06

  	
  Reference in Securities to Supplemental Indentures

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN
  COVENANTS

  	
  60

  
	
   

  	
   

  
	
  Section 10.01

  	
  Payment of Principal, Premium, if any, and Interest

  	
  60

  
	
  Section 10.02

  	
  Maintenance of Office or Agency

  	
  60

  
	
  Section 10.03

  	
  Money for Securities Payments to Be Held in Trust

  	
  62

  
	
  Section 10.04

  	
  Additional Amounts

  	
  63

  
	
  Section 10.05

  	
  Statement as to Compliance

  	
  63

  
	
  Section 10.06

  	
  Payment of Taxes and Other Claims

  	
  64

  



 


ii

















 


	
  Section 10.07

  	
  Waiver of Certain Covenants

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN
  REDEMPTION OF SECURITIES

  	
  64

  
	
   

  	
   

  
	
  Section 11.01

  	
  Applicability of Article

  	
  64

  
	
  Section 11.02

  	
  Election to Redeem; Notice to Trustee

  	
  64

  
	
  Section 11.03

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  65

  
	
  Section 11.04

  	
  Notice of Redemption

  	
  65

  
	
  Section 11.05

  	
  Deposit of Redemption Price

  	
  66

  
	
  Section 11.06

  	
  Securities Payable on Redemption Date

  	
  66

  
	
  Section 11.07

  	
  Securities Redeemed in Part

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE
  SINKING FUNDS

  	
  68

  
	
   

  	
   

  
	
  Section 12.01

  	
  Applicability of Article

  	
  68

  
	
  Section 12.02

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  68

  
	
  Section 12.03

  	
  Redemption of Securities for Sinking Fund

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN
  REPAYMENT AT THE OPTION OF HOLDERS

  	
  69

  
	
   

  	
   

  
	
  Section 13.01

  	
  Applicability of Article

  	
  69

  
	
  Section 13.02

  	
  Repayment of Securities

  	
  69

  
	
  Section 13.03

  	
  Exercise of Option

  	
  69

  
	
  Section 13.04

  	
  When Securities Presented for Repayment Become Due and
  Payable

  	
  70

  
	
  Section 13.05

  	
  Securities Repaid in Part

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOURTEEN
  DEFEASANCE AND COVENANT DEFEASANCE

  	
  71

  
	
   

  	
   

  
	
  Section 14.01

  	
  Applicability of Article; Company’s
  Option to Effect Defeasance or Covenant Defeasance

  	
  71

  
	
  Section 14.02

  	
  Defeasance and Discharge

  	
  71

  
	
  Section 14.03

  	
  Covenant Defeasance

  	
  71

  
	
  Section 14.04

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  72

  
	
  Section 14.05

  	
  Deposited Money and Government Obligations to Be Held in
  Trust; Other Miscellaneous Provisions

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIFTEEN
  MEETINGS OF HOLDERS OF SECURITIES

  	
  74

  
	
   

  	
   

  
	
  Section 15.01

  	
  Purposes for Which Meetings May Be Called

  	
  74

  
	
  Section 15.02

  	
  Call, Notice and Place of Meetings

  	
  75

  
	
  Section 15.03

  	
  Persons Entitled to Vote at Meetings

  	
  75

  
	
  Section 15.04

  	
  Quorum; Action

  	
  75

  
	
  Section 15.05

  	
  Determination of Voting Rights; Conduct and Adjournment of
  Meetings

  	
  76

  
	
  Section 15.06

  	
  Counting Votes and Recording Action of Meetings

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIXTEEN
  SUBORDINATION OF SECURITIES

  	
  77

  
	
   

  	
   

  
	
  Section 16.01

  	
  Agreement to Subordinate

  	
  77

  
	
  Section 16.02

  	
  Distribution on Dissolution, Liquidation and
  Reorganization; Subrogation of Subordinated Securities

  	
  78

  
	
  Section 16.03

  	
  No Payment on Subordinated Securities in Event of Default
  on Senior Indebtedness

  	
  79

  
	
  Section 16.04

  	
  Payments on Subordinated Securities Permitted

  	
  80

  
	
  Section 16.05

  	
  Authorization of Holders to Trustee to Effect Subordination

  	
  80

  
	
  Section 16.06

  	
  Notices to Trustee

  	
  80

  
	
  Section 16.07

  	
  Trustee as Holder of Senior Indebtedness

  	
  81

  
	
  Section 16.08

  	
  Modifications of Terms of Senior Indebtedness

  	
  81

  



 


iii

















 


	
  Section 16.09

  	
  Reliance on Judicial Order or Certificate of Liquidating
  Agent

  	
  81

  



 


iv

















 


ARES CAPITAL CORPORATION

Reconciliation and tie between Trust Indenture Act of 1939

and Indenture, dated as of October 21, 2010


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  §
  310

  	
  (a)(1)

  	
   

  	
  6.07

  
	
   

  	
  (a)(2)

  	
   

  	
  6.07

  
	
   

  	
  (b)

  	
   

  	
  6.09

  
	
  §
  312

  	
  (c)

  	
   

  	
  7.01

  
	
  §
  314

  	
  (a)

  	
   

  	
  7.04

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)(4)

  	
   

  	
  10.05

  
	
   

  	
  (c)(1)

  	
   

  	
  1.02

  
	
   

  	
  (c)(2)

  	
   

  	
  1.02

  
	
   

  	
  (e)

  	
   

  	
  1.02

  
	
  §
  315

  	
  (b)

  	
   

  	
  6.01

  
	
  §
  316

  	
  (a) (last
  sentence)

  	
   

  	
  1.01
  (“Outstanding”)

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.02,
  5.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
  (b)

  	
   

  	
  5.08

  
	
  §
  317

  	
  (a)(1)

  	
   

  	
  5.03

  
	
   

  	
  (a)(2)

  	
   

  	
  5.04

  
	
  §
  318

  	
  (a)

  	
   

  	
  1.11

  
	
   

  	
  (c)

  	
   

  	
  1.11

  



 






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


 


v
















 


INDENTURE,
dated as of October 21, 2010, between Ares Capital Corporation, a Maryland
corporation (the “Company”), and U.S. Bank National Association, a national banking
association, as Trustee (as trustee in such capacity and not in its individual
capacity, the “Trustee”).


 


RECITALS OF THE COMPANY


 


WHEREAS,
the Company deems it necessary to issue from time to time for its lawful
purposes debt securities (hereinafter called the “Securities”) evidencing its secured or unsecured indebtedness, which
may or may not be convertible into or exchangeable for any securities of any
Person (including the Company), and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, to be issued in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such times and to have
such other provisions as shall be fixed as hereinafter provided;


 


WHEREAS,
this Indenture (as defined herein) is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions;
and


 


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


 


NOW,
THEREFORE, for and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities and coupons, or of a series thereof, as follows:


 


ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION


 


Section 1.01                                Definitions.


 


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


 


(a)           the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular and, pursuant to Section 3.01,
any such item may, with respect to any particular series of Securities, be
amended or modified or specified as being inapplicable;


 


(b)           all
other terms used herein which are defined in the Trust Indenture Act (as
defined herein), either directly or by reference therein, have the meanings
assigned to them therein, and the terms “cash
transaction” and “self-liquidating
paper”, as used in Section 311 of the
Trust Indenture Act, shall have the meanings assigned to them in the rules of
the Commission (as defined herein) adopted under the Trust Indenture Act;


 


(c)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States of America;


 


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


 


1

















 


(e)           “or” is not
exclusive;


 


(f)            provisions
apply to successive events and transactions; and


 


(g)           references
to sections of or rules under the Securities Exchange Act of 1934 shall be
deemed to include substitute, replacement of successor sections or rules adopted
by the Commission from time to time.


 


Certain
terms, used in other Articles herein, are defined in those Articles.


 


“Act”, when used with respect to
any Holder of a Security, has the meaning specified in Section 1.04.


 


“Additional Amounts” means any
additional amounts that are required by a Security or by or pursuant to a Board
Resolution, under circumstances specified therein, to be paid by the Company in
respect of certain taxes imposed on certain Holders and that are owing to such
Holders.


 


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


 


“Authenticating
Agent” means any authenticating agent appointed by the Trustee pursuant to Section 6.12
to act on behalf of the Trustee to authenticate Securities of one or more
series.


 


“Authorized
Newspaper” means a newspaper, in the English language or in an official
language of the country of publication, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. 
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.


 


“Bankruptcy
Law” has the meaning specified in Section 5.01.


 


“Bearer
Security” means any Security established pursuant to Section 2.01 that
is payable to bearer.


 


“Board
of Directors” means the board of directors of the Company or any committee
of that board duly authorized to act hereunder.


 


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


 


“Business
Day”, when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01,
each Monday, Tuesday, Wednesday, Thursday and Friday that is not 


 


2

















 


a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.


 


“Clearstream”
means Clearstream International or its successor.


 


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


 


“Common
Depositary” has the meaning specified in Section 3.04(b).


 


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


 


“Company
Request” and “Company Order” mean, respectively, a written request or order signed in
the name of the Company by the Chairman, the President or a Vice President, and
by the Chief Financial Officer, the Chief Operating Officer, if any, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.


 


“Component
Currency” has the meaning specified in Section 3.12(h).


 


“Conversion
Date” has the meaning specified in Section 3.12(d).


 


“Conversion
Event” means the cessation of use of (i) a Foreign Currency both by
the government of the country which issued such currency and for the settlement
of transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European
Monetary System and for the settlement of transactions by public institutions
of or within the European Communities or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which it was
established.


 


“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 One Federal Street, 3rd Floor, Boston,
Massachusetts 02110, Attention: 
Corporate Trust Services, Karen Beard; provided that for purposes
of presentment or surrender of securities for transfer or payment or exchange,
such office is located at 60 Livingston Avenue, St. Paul, Minnesota 55107-2292,
Attention: Corporation Trust Administration, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Issuer, or the principal corporate trust office of any successor Trustee (or such
other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).


 


“corporation”
includes corporations, associations, companies and business trusts.


 


“coupon”
means any interest coupon appertaining to a Bearer Security.


 


“Currency” means any currency or
currencies, composite currency or currency unit or currency units, including,
without limitation, the ECU, issued by the government of one or more countries
or by any reorganized confederation or association of such governments.


 


3

















 


“Default”
means any event that is, or after notice or passage of time or both would be,
an Event of Default.


 


“Defaulted
Interest” has the meaning specified in Section 3.07(a).


 


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


 


“ECU”
means the European Currency Unit as defined and revised from time to time by
the Council of the European Communities.


 


“Election
Date” has the meaning specified in Section 3.12(h).


 


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


 


“European
Communities” means the European Union, the European Coal and Steel
Community and the European Atomic Energy Community.


 


“European
Monetary System” means the European Monetary System established by the
Resolution of December 5, 1978 of the Council of the European Communities.


 


“Event
of Default” has the meaning specified in Section 5.01.


 


“Exchange
Date” has the meaning specified in Section 3.04(b).


 


“Exchange
Rate Agent”, with respect to Securities of or within any series, means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01,
a New York Clearing House bank designated pursuant to Section 3.01 or Section 3.13.


 


“Exchange
Rate Officer’s Certificate” means a certificate setting forth (i) the
applicable Market Exchange Rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section 3.02
in the relevant Currency), payable with respect to a Security of any series on
the basis of such Market Exchange Rate or the applicable bid quotation signed
by the Chief Financial Officer or any Vice President of the Company.


 


“Extension
Notice” has the meaning specified in Section 3.08.


 


“Extension
Period” has the meaning specified in Section 3.08.


 


“Final
Maturity” has the meaning specified in Section 3.08.


 


“Foreign
Currency” means any Currency, including, without limitation, the ECU issued
by the government of one or more countries other than the United States of
America or by any recognized confederation or association of such governments.


 


“Government
Obligations” means securities that are (i) direct obligations of the
United States of America or the government which issued the Foreign Currency in
which the Securities of a particular 


 


4

















 


series
are payable, for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government that issued
the Foreign Currency in which the Securities of such series are payable, the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.


 


“Holder”
means, in the case of a Registered Security, the Person in whose name a
Security is registered in the Security Register and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.


 


“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 pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 3.01;
provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular series
of Securities for which such Person is Trustee established as contemplated by Section 3.01,
exclusive, however, of any provisions or terms that relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person,
as such Trustee, was not a party.


 


“Indexed
Security” means a Security as to which all or certain interest payments
and/or the principal amount payable at Maturity are determined by reference to
prices, changes in prices, or differences between prices, of securities,
Currencies, intangibles, goods, articles or commodities or by such other
objective price, economic or other measures as are specified in Section 3.01
hereof.


 


“Interest”,
when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity, means interest payable after
Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.04, includes such
Additional Amounts.


 


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


 


“Junior
Subordinated Security” or “Junior Subordinated Securities” means any
Security or Securities designated pursuant to Section 3.01 as a Junior
Subordinated Security.


 


“Junior
Subordinated Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (a) indebtedness of the Company (including indebtedness
of others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, 


 


5

















 


for
money borrowed, which in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is provided that such indebtedness
ranks junior in right of payment to the Company’s
Senior Indebtedness and Senior Subordinated Indebtedness and equally and pari passu in right of payment to any other Junior
Subordinated Indebtedness, (b) Junior Subordinated Securities, and (c) renewals,
extensions, modifications and refinancings of any such indebtedness.


 


“Market
Exchange Rate” means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving
a currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 3.01
for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency,
the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either New York
City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent.  Unless otherwise specified with respect to
any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
as of the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such currency or
currency unit in question, or such other quotations as the Exchange Rate Agent
shall deem appropriate.  Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would purchase such currency or
currency unit in order to make payments in respect of such securities as
determined by the Exchange Rate Agent, in its sole discretion.


 


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


 


“Notice
of Default” has the meaning provided in Section 5.01.


 


“Officers’
Certificate” means a certificate signed by the Chairman, the President or
any Vice President and by the Chief Financial Officer, the Chief Operating
Officer, if any, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.


 


“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company or who may be an employee of or other counsel for the Company.


 


“Optional
Reset Date” has the meaning specified in Section 3.07(b).


 


“Original
Issue Discount Security” means any Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02.


 


6

















 


“Original
Stated Maturity” has the meaning specified in Section 3.08.


 


“Outstanding”,
when used with respect to Securities or any series of Securities, means, as of
the date of determination, all Securities or all Securities of such series, as
the case may be, theretofore authenticated and delivered under this Indenture, except:


 


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


 


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


 


(iii)          Securities, except to the extent provided in Sections 14.02
and 14.03, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and


 


(iv)          Securities that have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a protected purchaser in
whose hands such Securities are valid obligations of the Company;


 


provided, however,
that in determining whether the Holders of the requisite principal amount of
the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of
Holders for quorum purposes, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of an Original
Issue Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the
principal amount of any Security denominated in a Foreign Currency that may be
counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent,
determined as of the date such Security is originally issued by the Company as
set forth in an Exchange Rate Officer’s Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of original issuance of the amount determined as provided in
clause (i) above or (iii) below, respectively) of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 3.01, and (iv) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which a Responsible Officer of the
Trustee 


 


7

















 


actually
knows to be so owned shall be so disregarded. 
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.


 


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


 


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


 


“Place
of Payment”, when used with respect to the Securities of or within any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on such Securities are payable as specified and as
contemplated by Sections 3.01 and 10.02.


 


“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.


 


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


 


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


 


“Registered
Security” means any Security that is registered in the Security Register.


 


“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Registered Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.01, whether or not a Business Day.


 


“Repayment
Date” means, when used with respect to any Security to be repaid at the
option of the Holder, means the date fixed for such repayment by or pursuant to
this Indenture.


 


“Repayment
Price” means, when used with respect to any Security to be repaid at the
option of the Holder, means the price at which it is to be repaid by or
pursuant to this Indenture.


 


“Reset
Notice” has the meaning specified in Section 3.07(b).


 


“Responsible
Officer”, when used with respect to the Trustee, means any officer of the
Trustee assigned by the Trustee to administer its corporate trust matters and
who shall have direct responsibility for the administration of this Indenture.


 


“Security”
or “Securities” has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, 


 


8

















 


“Securities” with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.


 


“Security
Register” and “Security Registrar” have the respective meanings
specified in Section 3.05.


 


“Senior
Indebtedness” means the principal of (and premium, if any) and unpaid
interest on (a) indebtedness of the Company (including indebtedness of
others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed, unless
in the instrument creating or evidencing the same or under which the same is
outstanding it is provided that such indebtedness is not senior or prior in
right of payment to Subordinated Indebtedness, (b) Senior Securities, and (c) renewals,
extensions, modifications and refinancings of any such indebtedness.


 


“Senior Security” or “Senior
Securities” means any Security or Securities designated pursuant to Section 3.01
as a Senior Security.


 


“Senior
Subordinated Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (a) indebtedness of the Company (including indebtedness
of others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed, that
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding it is provided that such indebtedness ranks junior in right of
payment to the Company’s Senior
Indebtedness, equally and pari passu in
right of payment with all other Senior Subordinated Indebtedness and senior in
right of payment to any Junior Subordinated Indebtedness, (b) Senior
Subordinated Securities, and (c) renewals, extensions, modifications and
refinancings of any such indebtedness.


 


“Senior
Subordinated  Security” or “Senior Subordinated Securities”
means any Security or Securities designated pursuant to Section 3.01 as a
Senior Subordinated Security.


 


“Special
Record Date” for the payment of any Defaulted Interest on the Registered
Securities of or within any series means a date fixed by the Trustee pursuant
to Section 3.07.


 


“Specified
Amount” has the meaning specified in Section 3.12(h).


 


“Stated
Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of principal
or interest is due and payable, as such date may be extended pursuant to the
provisions of Section 3.08.


 


“Subordinated
Indebtedness” means any Senior Subordinated Indebtedness or Junior
Subordinated Indebtedness.


 


“Subsequent
Interest Period” has the meaning specified in Section 3.07(b).


 


“Subsidiary”
means (1) any corporation a majority of the outstanding voting stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company, (2) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such 


 


9

















 


Person,
or such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination thereof has a majority ownership
interest, or (3) a partnership in which such Person or a Subsidiary of
such Person is, at the time, a general partner and in which such Person,
directly or indirectly, at the date of determination thereof has a majority
ownership interest.  For the purposes of
this definition, “voting stock”
means stock having voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.


 


“Trust
Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed,
except as provided in Section 9.05.


 


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


 


“United
States” means, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.


 


“United
States person” means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, any individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income taxation
regardless of its source, or any trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States persons have the authority to control all substantial
decisions of the trust.  Notwithstanding
the preceding sentence, to the extent provided in the Treasury regulations,
certain trusts in existence on August 20, 1996, and treated as United
States persons prior to such date that elect to continue to be treated as
United States Persons, will also be United States persons.


 


“Valuation
Date” has the meaning specified in Section 3.12(c).


 


“Yield
to Maturity” means the yield to maturity, computed at the time of issuance
of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.


 


Section 1.02                                Compliance
Certificates.


 


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


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 10.05)
shall include:


 


10
















 


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


 


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


 


(c)                                  a statement that such
individual signing the certificate or opinion has made such examination or
investigation as is necessary to enable such individual to express an informed
belief as to whether or not such condition or covenant has been complied with;
and


 


(d)                                 a statement as to whether
such individual believes such condition or covenant has been complied with.


 


Section 1.03                                Form of
Documents Delivered to Trustee.


 


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


 


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


 


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


 


Section 1.04                                Acts of Holders.


 


(a)                                  Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing.  If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. 
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered
to the Trustee and, where it is hereby expressly required, to the Company.  


 


11

















 


Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments or
so voting at any such meeting.  Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this
Section.  The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 15.06.


 


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


 


(c)                                  The ownership of Registered
Securities shall be proved by the Security Register.


 


(d)                                 The ownership of Bearer
Securities may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory.  The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (i) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (ii) such Bearer Security is produced to
the Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding.  The
ownership of Bearer Securities may also be proved in any other manner that the
Trustee deems reasonably sufficient.


 


(e)                                  If the Company shall solicit
from the Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its
option, in or pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. 
Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed.  If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.


 


12

















 


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


 


Section 1.05                                Notices, Etc.,
to Trustee and Company.


 


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


 


(i)                                     the Trustee by
any Holder or by the Company shall be sufficient for every purpose hereunder if
in writing and mailed, first-class postage prepaid or sent via overnight
courier guaranteeing next day delivery or same day messenger service to the
Trustee at its Corporate Trust Office, Attention: Ares Capital Corporation  [identify Securities], or


 


(ii)                                  the Company by
the Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or sent via overnight courier guaranteeing next
day delivery or same day messenger service, to the Company, to the attention of
its Chief Financial Officer at 280 Park Avenue, 22nd Floor, Building East, New
York, New York 10017.


 


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


 


All
notices and communications (other than those sent to Holders) shall be deemed
to have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) five Business Days after being deposited in the mail,
postage prepaid; and (iii) the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.


 


Section 1.06                                Notice to
Holders; Waiver.


 


Where
this Indenture provides for notice of any event to Holders of Registered
Securities by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or by overnight courier guaranteeing next day
delivery to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.  Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA.  In any case where
notice to Holders of Registered Securities is given by mail or by overnight
courier guaranteeing next day delivery, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein.  Any
notice mailed or sent to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.


 


If
by reason of the suspension of or irregularities in regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered 


 


13

















 


Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.


 


Except
as otherwise expressly provided herein or otherwise specified with respect to
any Securities pursuant to Section 3.01, where this Indenture provides for
notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.  Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.


 


If
by reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder.  Neither the failure
to give notice by publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall affect the sufficiency
of such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given as provided
herein.


 


Any
request, demand, authorization, direction, notice, consent or waiver required
or permitted under this Indenture shall be in the English language, except that
any published notice may be in an official language of the country of
publication.


 


Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.


 


Section 1.07                                Effect of
Headings and Table of Contents.


 


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


 


Section 1.08                                Successors and
Assigns.


 


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


 


Section 1.09                                Separability
Clause.


 


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


 


Section 1.10                                Benefits of
Indenture.


 


Nothing
in this Indenture or in the Securities or coupons, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent 


 


14

















 


and
their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.


 


Section 1.11                                Governing Law.


 


This
Indenture and the Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York without regard to principles
of conflicts of laws that would cause the application of laws of another jurisdiction.  This Indenture is subject to the provisions
of the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.


 


Section 1.12                                Legal Holidays.


 


In
any case where any Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security or coupon other than a provision in
the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal (or premium, if any)
or interest, if any, need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.


 


Section 1.13                                Submission to
Jurisdiction.


 


The
Company hereby irrevocably submits to the non-exclusive jurisdiction of any New
York state or federal court sitting in The City of New York in any action or
proceeding arising out of or relating to the Indenture and the Securities of
any series, and the Company hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York state or federal court.  The Company
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding.


 


ARTICLE TWO


 


SECURITIES FORMS


 


Section 2.01                                Forms of
Securities.


 


The
Registered Securities, if any, of each series and the Bearer Securities, if
any, of each series and related coupons, the temporary global Securities of
each series, if any, and the permanent global Securities of each series, if
any, to be endorsed thereon shall be in substantially the forms as shall be
established in one or more indentures supplemental hereto or approved from time
to time by or pursuant to a Board Resolution in accordance with Section 3.01,
shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed 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 


 


15

















 


any
rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.


 


Unless
otherwise specified as contemplated by Section 3.01, Bearer Securities
shall have interest coupons attached.


 


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


 


Section 2.02                                Form of
Trustee’s Certificate of Authentication.


 


Subject
to Section 6.11, the Trustee’s certificate
of authentication shall be in substantially the following form:


 


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


 


	
   

  	
   

  	
  U.S.
  Bank National Association, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized
  Officer

  



 


Section 2.03                                Securities
Issuable in Global Form.


 


If
Securities of or within a series are issuable in global form, as specified as
contemplated by Section 3.01, then, notwithstanding the provisions of Section 3.02,
any such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities of
such series represented thereby may from time to time be increased or decreased
to reflect exchanges.  Any endorsement of
a Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee or the Security Registrar in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.03 or 3.04.  Subject to the provisions of Section 3.03
and, if applicable, Section 3.04, the Trustee or the Security Registrar
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order.  If a
Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement,
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel.


 


The
provisions of the last sentence of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee or the
Security Registrar the Security in global form together with written
instructions (which need not comply with Section 1.02 and need not be
accompanied by an Opinion of 


 


16

















 


Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.


 


Notwithstanding
the provisions of Section 3.07, unless otherwise specified as contemplated
by Section 3.01, payment of principal of (and premium, if any) and interest,
if any, on any Security in permanent global form shall be made to the Person or
Persons specified therein.


 


Notwithstanding
the provisions of Section 3.09 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.


 


ARTICLE THREE


 


THE SECURITIES


 


Section 3.01                                Amount
Unlimited; Issuable in Series.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.


 


The
Securities may be issued in one or more series and shall be designated as
Senior Securities, Senior Subordinated Securities or Junior Subordinated
Securities.  Senior Securities are
unsubordinated, shall rank equally and pari passu with
all of the Company’s Senior Indebtedness and senior
to all Subordinated Securities.  Senior
Subordinated Securities shall rank junior to the Company’s
Senior Indebtedness, equally and pari passu with
all other Senior Subordinated Indebtedness and senior to any Junior
Subordinated Indebtedness.  Junior
Subordinated Securities shall rank junior to the Company’s
Senior Indebtedness and any Senior Subordinated Indebtedness and equally and pari passu with all other Junior Subordinated
Indebtedness.  There shall be established
in one or more Board Resolutions or pursuant to authority granted by one or
more Board Resolutions and, subject to Section 3.03, set forth, or
determined in the manner provided, in an Officers’
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series, any or all of the following,
as applicable (each of which (except for the matters set forth in clauses (i), (ii) and
(xv) below), if so provided, may be determined from time to time by the
Company with respect to unissued Securities of the series when issued from time
to time):


 


(i)                                     the title of
the Securities of the series including CUSIP numbers (which shall distinguish
the Securities of such series from all other series of Securities);


 


(ii)                                  any limit upon
the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 3.04,
3.05, 3.06, 9.06, 11.07 or 13.05, and except for any Securities which, pursuant
to Section 3.03, are deemed never to have been authenticated and delivered
hereunder);


 


17

















 


(iii)                               the date or
dates, or the method by which such date or dates will be determined or
extended, on which the principal of the Securities of the series shall be
payable;


 


(iv)                              the rate or
rates at which the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or dates from
which such interest shall accrue or the method by which such date or dates shall
be determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by which such
date shall be determined, and the basis upon which such interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;


 


(v)                                 the place or
places, if any, other than or in addition to the County of Suffolk, the City of
Boston, where the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable, and where notices or demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served;


 


(vi)                              the period or
periods within which, or the date or dates on which, the price or prices at
which, the Currency or Currencies in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;


 


(vii)                           the obligation,
if any, of the Company to redeem, repay or purchase Securities of the series
pursuant to any sinking fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which or the date or dates on which,
the price or prices at which, the Currency or Currencies in which, and other
terms and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;


 


(viii)                        if other than
denominations of $1,000 and any integral multiple thereof, the denomination or
denominations in which any Registered Securities of the series shall be
issuable and, if other than denominations of $5,000, the denomination or
denominations in which any Bearer Securities of the series shall be issuable;


 


(ix)                                if other than
the Trustee, the identity of each Security Registrar and/or Paying Agent;


 


(x)                                   if other than
the principal amount thereof, the portion of the principal amount of Securities
of the series that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02, upon redemption of the
Securities of the series which are redeemable before their Stated Maturity,
upon surrender for repayment at the option of the Holder, or which the Trustee
shall be entitled to claim pursuant to Section 5.04 or the method by which
such portion shall be determined;


 


(xi)                                if other than
Dollars, the Currency or Currencies in which payment of the principal of (or
premium, if any) or interest, if any, on the Securities of the series shall be
made or 


 


18

















 


in which the Securities of the series shall
be denominated and the particular provisions applicable thereto in accordance
with, in addition to or in lieu of any of the provisions of Section 3.12;


 


(xii)                             whether the
amount of payments of principal of (or premium, if any) or interest, if any, on
the Securities of the series may be determined with reference to an index,
formula or other method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;


 


(xiii)                          whether the
principal of (or premium, if any) or interest, if any, on the Securities of the
series are to be payable, at the election of the Company or a Holder thereof,
in one or more Currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange rate
between the Currency or Currencies in which such Securities are denominated or
stated to be payable and the Currency or Currencies in which such Securities
are to be paid, in each case in accordance with, in addition to or in lieu of
any of the provisions of Section 3.12;


 


(xiv)                         provisions, if
any, granting special rights to the Holders of Securities of the series,
including, without limitation, with respect to any collateral securing such
Securities;


 


(xv)                            any deletions
from, modifications of or additions to the Events of Default or covenants
(including any deletions from, modifications of or additions to any of the
provisions of Section 10.07) of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;


 


(xvi)                         whether
Securities of the series are to be issuable as Registered Securities, Bearer
Securities (with or without coupons) or both, any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the terms upon which
Bearer Securities of the series may be exchanged for Registered Securities of
the series and vice versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable initially in temporary
global form with or without coupons and whether any Securities of the series
are to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series in certificated form
and of like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner provided
in Section 3.05, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by applicable laws
and regulations), whether Bearer Securities of the series may be exchanged for
Registered Securities of the series, and the circumstances under which and the
place or places where such exchanges may be made and if Securities of the
series are to be issuable as a global Security, the identity of the depository
for such series;


 


(xvii)                      the date as of
which any Bearer Securities of the series and any temporary global Security
representing Outstanding Securities of the series shall be dated if other than
the date of original issuance of the first Security of the series to be issued;


 


19

















 


(xviii)                   the Person to whom any
interest on any Registered Security of the series shall be payable, if other
than the Person in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 3.04; and the extent to
which, or the manner in which, any interest payable on a permanent global
Security on an Interest Payment Date will be paid if other than in the manner
provided in Section 3.07;


 


(xix)                           the
applicability, if any, of Sections 14.02 and/or 14.03 to the Securities of the
series and any provisions in modification of, in addition to or in lieu of any
of the provisions of Article Fourteen;


 


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


 


(xxi)                           whether, under
what circumstances and the Currency in which, the Company will pay Additional
Amounts as contemplated by Section 10.04 on the Securities of the series
to any Holder who is not a United States Person (including any modification to
the definition of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of any such
option);


 


(xxii)                        the designation
of the initial Exchange Rate Agent, if any;


 


(xxiii)                     if the Securities of the
series are to be issued upon the exercise of warrants, the time, manner and
place for such Securities to be authenticated and delivered;


 


(xxiv)                    if the Securities of the
series are to be convertible into or exchangeable for any securities of any
Person (including the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable;


 


(xxv)                       if the
Securities of the series are to be listed on a securities exchange, the name of
such exchange may be indicated; and


 


(xxvi)                    any other terms of the
series (which terms shall not be inconsistent with the provisions of this
Indenture or the requirements of the Trust Indenture Act), including, but not
limited to, secured Securities and guarantees of Securities.


 


All
Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above (subject to Section 3.03)
and set forth in the Officers’ Certificate
referred to above or in any such indenture supplemental hereto.  All Securities of any one series need not be
issued at the same time and, unless


 


20
















 


otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.


 


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


 


Section 3.02                                Denominations.


 


The
Securities of each series shall be issuable in such denominations as shall be
specified as contemplated by Section 3.01. 
With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.


 


Section 3.03                                Execution,
Authentication, Delivery and Dating.


 


The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman, the Chief Executive Officer, the Chief Financial
Officer, or its President or one of its Vice Presidents.  The signature of any of these officers on the
Securities and coupons may be manual or by facsimile, .pdf attachment or other
electronically transmitted signature (with an original manual signature to be
sent to the Trustee via overnight mail immediately thereafter) of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.


 


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


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and provided
further that, unless otherwise specified with respect to any series of
Securities pursuant to Section 3.01, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate in the form set forth
in Exhibit A-1 to this Indenture or such other certificate as may be
specified with respect to any series of Securities pursuant to Section 3.01,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. 
If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 3.04, the
notation of a beneficial owner’s interest
therein upon original issuance of such Security or upon exchange of a portion
of a temporary global Security shall be deemed to be delivery in connection
with its original issuance of such beneficial owner’s
interest in such permanent global Security. 
Except as 


 


21

















 


permitted
by Section 3.06, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and cancelled.  If all the Securities
of any series are not to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular Securities of such
series, such as interest rate, maturity date, date of issuance and date from
which interest shall accrue.  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 TIA Section 315(a) through
315(d)) shall be fully protected in relying upon,


 


(a)                                  an Opinion of Counsel
stating,


 


(i)                                     that the form
or forms of such Securities and any coupons have been established in conformity
with the provisions of this Indenture;


 


(ii)                                  that the terms
of such Securities and any coupons have been established in conformity with the
provisions of this Indenture; and


 


(iii)                               that such
Securities, together with any coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and any coupons; and


 


(b)                                 an Officers’ Certificate stating, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any of
the Securities shall have occurred and be continuing.


 


Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all the
Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers’ Certificate
otherwise required pursuant to Section 3.01 or the Company Order, Opinion
of Counsel or Officers’ Certificate
otherwise required pursuant to the preceding paragraph at the time of issuance
of each Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series.


 


If
such form or terms have been so established, the Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee’s own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.  Notwithstanding the generality of the
foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.


 


Each
Registered Security shall be dated the date of its authentication and each
Bearer Security shall be dated as of the date specified as contemplated by Section 3.01.


 


22

















 


No
Security or coupon shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security or
Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee or
an Authenticating Agent by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.  Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.10 together with a
written statement (which need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.


 


Section 3.04                                Temporary
Securities.


 


(a)                                  Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.  In the case of Securities of any series, such
temporary Securities may be in global form.


 


Except
in the case of temporary Securities in global form (which shall be exchanged in
accordance with Section 3.04(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. 
After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. 
Upon surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any non-matured coupons appertaining thereto),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount and like tenor of definitive
Securities of the same series of authorized denominations; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided  further that a
definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 3.03.  Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.


 


(b)                                 Unless otherwise provided in
or pursuant to a Board Resolution, this Section 3.04(b) shall govern
the exchange of temporary Bearer Securities issued in global form.  If temporary Bearer Securities of any series
are issued in global form, any such temporary global Bearer Security shall,
unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the “Common
Depositary”), for the benefit of Euroclear
and Clearstream, for credit to the respective accounts of the beneficial owners
of such Bearer Securities (or to such other accounts as they may direct).


 


23

















 


Without
unnecessary delay but in any event not later than the date specified in, or
determined pursuant to the terms of, any such temporary global Bearer Security (the
“Exchange Date”), the Company shall deliver to the Trustee definitive
Bearer Securities, in aggregate principal amount equal to the principal amount
of such temporary global Bearer Security, executed by the Company.  On or after the Exchange Date, such temporary
global Bearer Security shall be surrendered by the Common Depositary to the
Trustee, as the Company’s agent for
such purpose, or to the Security Registrar, to be exchanged, in whole or from
time to time in part, for definitive Bearer Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Bearer Security, an equal aggregate principal amount of
definitive Bearer Securities of the same series of authorized denominations and
of like tenor as the portion of such temporary global Bearer Security to be
exchanged.  The definitive Bearer
Securities to be delivered in exchange for any such temporary global Bearer
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified
as contemplated by Section 3.01, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary global Bearer Security, upon
such presentation by the Common Depositary, such temporary global Bearer
Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Bearer Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary global Bearer Security held for
its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture or in such other form as may be established pursuant to Section 3.01;
and provided  further that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Bearer Security only
in compliance with the requirements of Section 3.03.


 


Unless
otherwise specified in such temporary global Bearer Security, the interest of a
beneficial owner of Bearer Securities of a series in a temporary global Bearer
Security shall be exchanged for definitive Bearer Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Clearstream, the Trustee,
any Authenticating Agent appointed for such series of Bearer Securities and
each Paying Agent.  Unless otherwise specified
in such temporary global Bearer Security, any such exchange shall be made free
of charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Bearer Securities must bear the cost
of insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Bearer Securities in person at the offices of
Euroclear or Clearstream.  Definitive
Bearer Securities in bearer form to be delivered in exchange for any portion of
a temporary global Bearer Security shall be delivered only outside the United
States.


 


Until
exchanged in full as hereinabove provided, the temporary Bearer Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Bearer Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on a temporary global
Bearer Security on an Interest Payment Date for Bearer Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and Clearstream on such Interest Payment Date upon delivery by
Euroclear and Clearstream to the Trustee or the applicable Paying Agent of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section 3.01),
for credit without further interest on or after such Interest Payment Date to
the respective 


 


24

















 


accounts
of Persons who are the beneficial owners of such temporary global Bearer
Security on such Interest Payment Date and who have each delivered to Euroclear
or Clearstream, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the
form set forth as Exhibit A-1 to this Indenture (or in such other forms as
may be established pursuant to Section 3.01).  Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this Section 3.04(b) and
of the third paragraph of Section 3.03 of this Indenture and the interests
of the Persons who are the beneficial owners of the temporary global Bearer
Security with respect to which such certification was made will be exchanged
for definitive Bearer Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners.  Except as otherwise provided in this
paragraph, no payments of principal (or premium, if any) or interest, if any, owing
with respect to a beneficial interest in a temporary global Bearer Security
will be made unless and until such interest in such temporary global Bearer
Security shall have been exchanged for an interest in a definitive Bearer
Security.  Any interest so received by
Euroclear and Clearstream and not paid as herein provided shall be returned to
the Trustee or the applicable Paying Agent immediately prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.


 


Section 3.05                                Registration,
Registration of Transfer and Exchange.


 


The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the “Security
Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities.  The Security Register shall be in written
form or any other form capable of being converted into written form within a
reasonable time.  The Trustee, at its
Corporate Trust Office, is hereby initially appointed “Security
Registrar” for the purpose of registering
Registered Securities and transfers of Registered Securities on such Security
Register as herein provided, and for facilitating exchanges of temporary global
Securities for permanent global Securities or definitive Securities, or both,
or of permanent global Securities for definitive Securities, or both, as herein
provided.  In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.


 


Upon
surrender for registration of transfer of any Registered Security of any series
at any office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized denominations and
of a like aggregate principal amount, bearing a number not contemporaneously
outstanding and containing identical terms and provisions.


 


At
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at any such office or agency.  Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities that the Holder making the
exchange is entitled to receive.  Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 3.01, Bearer Securities may not be issued in exchange for
Registered Securities.


 


25

















 


If
(but only if) permitted by the applicable Board Resolution and (subject to Section 3.03)
set forth in the applicable Officers’ Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section 3.01,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining.  If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount
equal to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless.  If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as
otherwise provided in Section 10.02, interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office
or agency located outside the United States. 
Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.


 


Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.


 


Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 3.01,
any permanent global Security shall be exchangeable only as provided in this
paragraph.  If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 3.01
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by
the Company.  On or after the earliest
date on which such interests may be so exchanged, such permanent global
Security shall be surrendered by the Common Depositary or such other depositary
as shall be specified in the Company Order with respect thereto to the Trustee,
as the Company’s agent for such purpose, or to
the Security Registrar, to be exchanged, in whole or from time to time in part,
for definitive Securities of the same series without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such permanent
global Security, an equal aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as the portion
of such permanent global Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as 


 


26

















 


Registered
Securities, in which case the definitive Securities exchanged for the permanent
global Security shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 3.01, shall be in the
form of Bearer Securities or Registered Securities, or any combination thereof,
as shall be specified by the beneficial owner thereof; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed and ending
on the relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided  further
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States.  If a Registered Security
is issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest or interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.


 


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


 


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


 


No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not
involving any transfer.


 


The
Company shall not be required (i) to issue, register the transfer of or
exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 11.03 and ending
at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security that has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.


 


27

















 


Section 3.06                                Mutilated,
Destroyed, Lost and Stolen Securities.


 


If
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security.


 


If
there shall be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a protected purchaser, the Company shall, subject to the following
paragraph, execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.


 


Notwithstanding
the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, with coupons corresponding to the coupons, if any, appertaining to
such mutilated, destroyed, lost or stolen Security or to the Security to which
such mutilated, destroyed, lost or stolen coupon appertains, pay such Security
or coupon, as the case may be; provided, however, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.02, be payable only at
an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.


 


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


 


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


 


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


 


28

















 


Section 3.07                                Payment of
Interest; Interest Rights Preserved; Optional Interest Reset.


 


(a)                                  Except as otherwise
specified with respect to a series of Securities in accordance with the
provisions of Section 3.01, interest, if any, on any Registered Security
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 10.02; provided, however,
that each installment of interest, if any, on any Registered Security may at the
Company’s option be paid by (i) mailing a
check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 3.09, to the address of such Person
as it appears on the Security Register or (ii) transfer to an account
maintained by the payee located in the United States.


 


Unless
otherwise provided as contemplated by Section 3.01 with respect to the
Securities of any series, payments of interest, if any, may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.


 


Unless
otherwise provided as contemplated by Section 3.01, every permanent global
Bearer Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Clearstream with respect to
that portion of such permanent global Bearer Security held for its account by
the Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Bearer Security to the accounts of the beneficial owners
thereof.


 


In
case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.


 


Except
as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 3.01, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable
to the registered Holder thereof on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:


 


(i)                                     The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner.  The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is received by
the Trustee), and at the same time the Company shall deposit with the Trustee
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series and except, if applicable, as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) equal to the 


 


29

















 


aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment.  The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register 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 the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (ii).  In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.


 


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


 


(b)                                 The provisions of this Section 3.07(b) may
be made applicable to any series of Securities pursuant to Section 3.01
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 3.01).  The
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by
the Company on the date or dates specified on the face of such Security (each
an “Optional Reset Date”).  The Company may
exercise such option with respect to such Security by notifying the Trustee of
such exercise at least 45 but not more than 60 days prior to an Optional Reset
Date for such Security.  Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a
notice (the “Reset Notice”)
indicating whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or
spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a “Subsequent
Interest Period”), including
the date or dates on which or the period or periods during which and the price
or prices at which such redemption may occur during the Subsequent Interest
Period.


 


30
















 


Notwithstanding
the foregoing, not later than 20 days prior to the Optional Reset Date (or if
20 days does not fall on a Business Day, the next succeeding Business Day), the
Company may, at its option, revoke the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) provided for in
the Reset Notice and establish a higher interest rate (or a spread or spread
multiplier providing for a higher interest rate, if applicable) for the
Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 1.06, notice of such higher interest rate (or such
higher spread or spread multiplier providing for a higher interest rate, if
applicable) to the Holder of such Security. 
Such notice shall be irrevocable. 
All Securities with respect to which the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable) is reset
on an Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier providing
for a higher interest rate, if applicable).


 


The
Holder of any such Security will have the option to elect repayment by the
Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date.  In order to obtain
repayment on an Optional Reset Date, the Holder must follow the procedures set
forth in Article Thirteen for repayment at the option of Holders except
that the period for delivery or notification to the Trustee shall be at least
25 but not more than 35 days prior to such Optional Reset Date and except that,
if the Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such tender or
repayment until the close of business on the tenth day before such Optional
Reset Date.


 


Subject
to the foregoing provisions of this Section and Section 3.05, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.


 


Section 3.08                                Optional
Extension of Maturity.


 


The
provisions of this Section 3.08 may be made applicable to any series of
Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01).  The Stated Maturity of any Security of such
series may be extended at the option of the Company for the period or periods
specified on the face of such Security (each an “Extension
Period”) up to but not beyond the date (the “Final Maturity”) set forth on
the face of such Security.  The Company
may exercise such option with respect to any Security by notifying the Trustee
of such exercise at least 45 but not more than 60 days prior to the Stated
Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”).  If the Company exercises such option, the
Trustee shall transmit, in the manner provided for in Section 1.06, to the
Holder of such Security not later than 40 days prior to the Original Stated
Maturity a notice (the “Extension
Notice”), prepared by the Company, indicating (i) the
election of the Company to extend the Stated Maturity, (ii) the new Stated
Maturity, (iii) the interest rate (or spread, spread multiplier or other
formula to calculate such interest rate, if applicable), if any, applicable to
the Extension Period and (iv) the provisions, if any, for redemption
during such Extension Period.  Upon the
Trustee’s transmittal of the Extension Notice,
the Stated Maturity of such Security shall be extended automatically and,
except as modified by the Extension Notice and as described in the next
paragraph, such Security will have the same terms as prior to the transmittal
of such Extension Notice.


 


31

















 


Notwithstanding
the foregoing, not later than 20 days before the Original Stated Maturity (or
if 20 days does not fall on a Business Day, the next succeeding Business Day)
of such Security, the Company may, at its option, revoke the interest rate (or
spread, spread multiplier or other formula to calculate such interest rate, if
applicable) provided for in the Extension Notice and establish a higher
interest rate (or spread, spread multiplier or other formula to calculate such
higher interest rate, if applicable) for the Extension Period by causing the
Trustee to transmit, in the manner provided for in Section 1.06, notice of
such higher interest rate (or spread, spread multiplier or other formula to
calculate such interest rate, if applicable) to the Holder of such
Security.  Such notice shall be
irrevocable.  All Securities with respect
to which the Stated Maturity is extended will bear such higher interest rate.


 


If
the Company extends the Stated Maturity of any Security, the Holder will have
the option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date.  In order to obtain
repayment on the Original Stated Maturity once the Company has extended the
Stated Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days
prior to the Original Stated Maturity and except that, if the Holder has
tendered any Security for repayment pursuant to an Extension Notice, the Holder
may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.


 


Section 3.09                                Persons Deemed
Owners.


 


Prior
to due presentment of a Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of
such Registered Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any,
on such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


Title
to any Bearer Security and any coupons appertaining thereto shall pass by
delivery.  The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner of such Security or
coupon for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.


 


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


 


Notwithstanding
the foregoing, with respect to any global temporary or permanent Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect
to such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.


 


32

















 


Section 3.10                                Cancellation.


 


All
Securities and coupons surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee, and any such Securities and coupons
and Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by the Trustee.  The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee.  If the Company
shall so 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 surrendered to the Trustee for
cancellation.  No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.  Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee in accordance with its customary
procedures, unless by a Company Order the Company directs the Trustee to
deliver a certificate of such destruction to the Company or to return them to
the Company.


 


Section 3.11                                Computation of
Interest.


 


Except
as otherwise specified as contemplated by Section 3.01 with respect to
Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.


 


Section 3.12                                Currency and
Manner of Payments in Respect of Securities.


 


(a)                                  Unless otherwise specified
with respect to any Securities pursuant to Section 3.01, with respect to
Registered Securities of any series not permitting the election provided for in
paragraph (b) below or the Holders of which have not made the election
provided for in paragraph (b) below, and with respect to Bearer Securities
of any series, except as provided in paragraph (d) below, payment of the
principal of (and premium, if any) and interest, if any, on any Registered or
Bearer Security of such series will be made in the Currency in which such
Registered Security or Bearer Security, as the case may be, is payable.  The provisions of this Section 3.12 may
be modified or superseded with respect to any Securities pursuant to Section 3.01.


 


(b)                                 It may be provided pursuant
to Section 3.01 with respect to Registered Securities of any series that
Holders shall have the option, subject to paragraphs (d) and (e) below,
to receive payments of principal of (or premium, if any) or interest, if any,
on such Registered Securities in any of the Currencies which may be designated
for such election by delivering to the Trustee for such series of Registered
Securities a written election with signature guarantees and in the applicable
form established pursuant to Section 3.01, not later than the close of
business on the Election Date immediately preceding the applicable payment
date.  If a Holder so elects to receive
such payments in any such Currency, such election will remain in effect for
such Holder or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company 


 


33

















 


has deposited funds pursuant to Article Four or
Fourteen or with respect to which a notice of redemption has been given by the
Company or a notice of option to elect repayment has been sent by such Holder
or such transferee).  Any Holder of any
such Registered Security who shall not have delivered any such election to the
Trustee of such series of Registered Securities not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in Section 3.12(a).  The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.


 


(c)                                  Unless otherwise specified
pursuant to Section 3.01, if the election referred to in paragraph (b) above
has been provided for pursuant to Section 3.01, then, unless otherwise
specified pursuant to Section 3.01, not later than the fourth Business Day
after the Election Date for each payment date for Registered Securities of any
series, the Exchange Rate Agent will deliver to the Company a written notice
specifying the Currency in which Registered Securities of such series are
payable, the respective aggregate amounts of principal of (and premium, if any)
and interest, if any, on the Registered Securities to be paid on such payment
date, specifying the amounts in such Currency so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency
as provided in paragraph (b) above. 
If the election referred to in paragraph (b) above has been
provided for pursuant to Section 3.01 and if at least one Holder has made
such election, then, unless otherwise specified pursuant to Section 3.01,
on the second Business Day preceding such payment date the Company will deliver
to the Trustee for such series of Registered Securities an Exchange Rate
Officer’s Certificate in respect of the Dollar
or Foreign Currency or Currencies payments to be made on such payment
date.  Unless otherwise specified
pursuant to Section 3.01, the Dollar or Foreign Currency or Currencies
amount receivable by Holders of Registered Securities who have elected payment
in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on
the second Business Day (the “Valuation
Date”) immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.


 


(d)                                 If a Conversion Event occurs
with respect to a Foreign Currency in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any) and interest, if any on the applicable
Securities denominated or payable in such Foreign Currency occurring after the
last date on which such Foreign Currency was used (the “Conversion
Date”), the Dollar shall be the currency of
payment for use on each such payment date. 
Unless otherwise specified pursuant to Section 3.01, the Dollar
amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.


 


(e)                                  Unless otherwise specified
pursuant to Section 3.01, if the Holder of a Registered Security denominated
in any Currency shall have elected to be paid in another Currency as provided
in paragraph (b) above, and a Conversion Event occurs with respect to such
elected Currency, such Holder shall receive payment in the Currency in which
payment would have been made in the absence of such election; and if a
Conversion Event occurs with respect to the Currency in which payment would
have been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) of this Section 3.12.


 


34

















 


(f)                                    The “Dollar
Equivalent of the Foreign Currency” shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.


 


(g)                                 The “Dollar
Equivalent of the Currency Unit” shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect to
each payment.


 


(h)                                 For purposes of this Section 3.12,
the following terms shall have the following meanings:


 


A
“Component Currency” shall mean any currency which, on the Conversion Date, was
a component currency of the relevant currency unit, including, but not limited
to, the ECU.


 


A
“Specified Amount” of a Component Currency shall mean the number of units of
such Component Currency or fractions thereof which were represented in the
relevant currency unit, including, but not limited to, the ECU, on the
Conversion Date.  If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion.  If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. 
If after the Conversion Date any Component Currency shall be divided
into two or more currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the date of
such replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before such
division, and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies.  If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of “Specified Amount”) occurs with
respect to any Component Currency of such currency unit and is continuing on
the applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.


 


An
“Election Date” shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as the
case may be, or such other prior date for any series of Registered Securities
as specified pursuant to clause (xiii) of Section 3.01 by which the
written election referred to in Section 3.12(b) may be made.


 


All
decisions and determinations of the Exchange Rate Agent regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit,
the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency.  The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee for the appropriate series of
Securities of any such decision or determination.


 


35

















 


In
the event that the Company determines in good faith that a Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof and of the applicable Conversion Date to the Trustee of
the appropriate series of Securities and to the Exchange Rate Agent (and such
Trustee will promptly thereafter give notice in the manner provided in Section 1.06
to the affected Holders) specifying the Conversion Date.  In the event the Company so determines that a
Conversion Event has occurred with respect to the ECU or any other currency
unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 1.06 to
the affected Holders) specifying the Conversion Date and the Specified Amount
of each Component Currency on the Conversion Date.  In the event the Company determines in good
faith that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee of the appropriate series of Securities and
to the Exchange Rate Agent.


 


The
Trustee of the appropriate series of Securities shall be fully justified and
protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.


 


Section 3.13                                Appointment and
Resignation of Successor Exchange Rate Agent.


 


(a)                                  Unless otherwise specified
pursuant to Section 3.01, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.  The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 3.01 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Foreign Currency into the applicable payment Currency
for the payment of principal (and premium, if any) and interest, if any,
pursuant to Section 3.12.


 


(b)                                 No resignation of the
Exchange Rate Agent and no appointment of a successor Exchange Rate Agent
pursuant to this Section shall become effective until the acceptance of
appointment by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Company and the Trustee of the appropriate series
of Securities accepting such appointment executed by the successor Exchange
Rate Agent.


 


(c)                                  If the Exchange Rate Agent
shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of the Exchange Rate Agent for any cause, with respect to
the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed with respect
to the Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 3.01, at any time there shall only
be one Exchange Rate Agent with respect to the Securities of any particular
series that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same Currency).


 


36

















 


Section 3.14                                CUSIP Numbers.


 


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


 


ARTICLE FOUR


 


SATISFACTION AND DISCHARGE


 


Section 4.01                                Satisfaction
and Discharge of Indenture.


 


Except
as set forth below, this Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and any right to receive Additional Amounts, as provided in Section 10.04),
and the Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when


 


(a)                                  either


 


(i)                                     all Securities
of such series theretofore authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as
provided in Section 3.05, (ii) Securities and coupons of such series
that have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 11.06, and (iv) Securities
and coupons of such series for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or


 


(ii)                                  all Securities
of such series and, in the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation


 


(1)                                  have become due
and payable, or


 


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


 


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


 


37

















 


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


 


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


 


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


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee and any predecessor Trustee under Section 6.06, the
obligations of the Company to any Authenticating Agent under Section 6.12
and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive any termination of
this Indenture.


 


Section 4.02                                Application of
Trust Funds.


 


Subject
to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.


 


ARTICLE FIVE


 


REMEDIES


 


Section 5.01                                Events of
Default.


 


“Event of Default”, wherever used
herein with respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series or is specifically deleted or modified in
or pursuant to the supplemental indenture or a Board Resolution establishing
such series of Securities or is in the form of Security for such series:


 


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


 


38

















 


(ii)                                  default in the
payment of the principal of (or premium, if any) any Security of that series
when it becomes due and payable at its Maturity, and continuance of such
default for a period of 5 days; or


 


(iii)                               default in the
deposit of any sinking fund payment, when and as due by the terms of any
Security of that series, and continuance of such default for a period of 5
days; or


 


(iv)                              default in the
performance, or breach, of any covenant or agreement of the Company in this
Indenture with respect to any Security of that series (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with or that has expressly been included in this Indenture solely for the
benefit of a series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;


 


(v)                                 the Company,
pursuant to or within the meaning of any Bankruptcy Law:


 


(1)                                  commences a
voluntary case or proceeding under any Bankruptcy Law,


 


(2)                                  consents to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
files a petition or answer or consent seeking reorganization or relief against
it,


 


(3)                                  consents to the
entry of a decree or order for relief against it in an involuntary case or
proceeding,


 


(4)                                  consents to the
filing of such petition or to the appointment of or taking possession by a
Custodian of the Company or for all or substantially all of its property, or


 


(5)                                  makes an
assignment for the benefit of creditors, or admits in writing of its inability
to pay its debts generally as they become due


 


or takes any corporate action in furtherance of any
such action;


 


(vi)                              a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(1)                                  is for relief
against the Company in an involuntary case or proceeding, or


 


(2)                                  adjudges the
Company bankrupt or insolvent, or approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, or


 


(3)                                  appoints a
Custodian of the Company or for all or substantially all of its property, or


 


(4)                                  orders the
winding up or liquidation of the Company,


 


39

















 


and the continuance of any such decree or order for
relief or any such other decree or order remains unstayed and in effect for a
period of 60 consecutive days;


 


(vii)                           if, pursuant to
Sections 18(a)(1)(c)(ii) and 61 of the Investment Company Act of 1940, on
the last business day of each of twenty-four consecutive calendar months any
class of Securities shall have an asset coverage (as such term is used in the
Investment Company Act of 1940) of less than 100 per centum; or


 


(viii)                        any other Event
of Default provided with respect to Securities of that series.


 


The
term “Bankruptcy Law” means title 11, U.S. Code or any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law.  The term “Custodian” means any custodian, receiver, trustee, assignee,
liquidator, sequestrator or other similar official under any Bankruptcy Law.


 


Section 5.02                                Acceleration of
Maturity; Rescission and Annulment.


 


If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become
immediately due and payable.


 


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


 


(i)                                     the Company has
paid or deposited with the Trustee a sum sufficient to pay in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)):


 


(1)                                  all overdue
installments of interest, if any, on all Outstanding Securities of that series
and any related coupons,


 


(2)                                  the principal
of (and premium, if any) all Outstanding Securities of that series that have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such Securities,


 


(3)                                  to the extent
that payment of such interest is lawful, interest upon overdue installments of
interest at the rate or rates borne by or provided for in such Securities, and


 


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


 


40
















 


(ii)                                  all Events of
Default with respect to Securities of that series, other than the nonpayment of
the principal of (or premium, if any) or interest on Securities of that series
that have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.


 


No
such rescission shall affect any subsequent default or impair any right
consequent thereon.


 


Section 5.03                                Collection of
Indebtedness and Suits for Enforcement by Trustee.


 


The
Company covenants that if:


 


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


 


(ii)                                  default is made
in the payment of the principal of (or premium, if any) any Security of any
series at its Maturity,


 


then
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


 


If
the Company fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities of such
series, wherever situated.


 


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


 


Section 5.04                                Trustee May File
Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


 


41

















 


(i)                                     to file and
prove a claim for the whole amount of principal (or in the case of Original
Issue Discount Securities or Indexed Securities, such portion of the principal
as may be provided for in the terms thereof) (and premium, if any) and
interest, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents (and take such other actions, including serving
on a committee of creditors) as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and


 


(ii)                                  to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Holder of Securities of such series and coupons to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.06.


 


Subject
to Article Eight and Section 9.02 and unless otherwise provided as
contemplated by Section 3.01, nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or coupon in any such proceeding.


 


Section 5.05                                Trustee May Enforce
Claims Without Possession of Securities or Coupons.


 


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


 


Section 5.06                                Application of
Money Collected.


 


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


 


FIRST:  To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 6.06;


 


SECOND:  To the payment of the amounts then due and
unpaid upon any Senior Securities and coupons for principal (and premium, if
any) and interest, if any, in respect of which or for the benefit of 


 


42

















 


which
such money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such Senior
Securities and coupons for principal (and premium, if any) and interest, if
any, respectively; and


 


THIRD:  To the payment of the amounts then due and
unpaid upon any Senior Subordinated Securities and coupons for principal (and
premium, if any) and interest, if any, 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 aggregate amounts due and payable on such Senior
Subordinated Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and


 


FOURTH:  To the payment of the amounts then due and
unpaid upon any other Securities and coupons for principal (and premium, if
any) and interest, if any, 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 aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, if any, respectively;
and


 


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


 


Section 5.07                                Limitation on
Suits.


 


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


 


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


 


(ii)                                  the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;


 


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


 


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


 


(v)                                 no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;


 


it
being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.


 


43

















 


Section 5.08                                Unconditional
Right of Holders to Receive Principal, Premium and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security or coupon
shall have the right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to Sections 3.05 and
3.07) interest, if any, on such Security or payment of such coupon on the
Stated Maturity or Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date or, in the case of repayment at the
option of the Holders on the Repayment Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.


 


Section 5.09                                Restoration of
Rights and Remedies.


 


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


 


Section 5.10                                Rights and
Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


Section 5.11                                Delay or
Omission Not Waiver.


 


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


 


Section 5.12                                Control by
Holders of Securities.


 


Subject
to Section 6.02(v), the Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that


 


(i)                                     such direction
shall not be in conflict with any rule of law or with this Indenture,


 


44

















 


(ii)                                  the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent
with such direction, and


 


(iii)                               the Trustee
need not take any action that might involve it in personal liability or be
unjustly prejudicial to the Holders of Securities of such series not
consenting.


 


Section 5.13                                Waiver of Past
Defaults.


 


Subject
to Section 5.02, the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series and any related coupons waive any past
default hereunder with respect to Securities of such series and its
consequences, except a default


 


(i)                                     in the payment
of the principal of (or premium, if any) or interest, if any, on any Security
of such series or any related coupons, or


 


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


 


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


 


Section 5.14                                Waiver of Stay
or Extension Laws.


 


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


 


ARTICLE SIX


 


THE TRUSTEE


 


Section 6.01                                Notice of
Defaults.


 


(a)                                  Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of (or
premium, if any) or interest, if any, on any Security of such series, or in the
payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the 


 


45

















 


withholding of such notice is in the interest of the
Holders of the Securities and coupons of such series; and provided  further
that in the case of any Default or breach of the character specified in Section 5.01(iv) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 90 days after the occurrence thereof.


 


(b)                                 Prior to the time when the
occurrence of an Event of Default becomes known to a Responsible Officer of the
Trustee and after the curing or waiving of all such Events of Default with
respect to a series of Securities that may have occurred:


 


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


 


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


 


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


 


Section 6.02                                Certain Rights
of Trustee.


 


Subject
to the provisions of TIA Section 315(a) through 315(d):


 


(i)                                     The Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties. 
The Trustee need not investigate any fact or matter stated in any
document.


 


(ii)                                  Any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order (other than delivery of any Security, together
with any coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 3.03 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.


 


(iii)                               Whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon a Board
Resolution, an Opinion of Counsel or an Officers’
Certificate.


 


46

















 


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


 


(v)                                 The Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders of
Securities of any series or any related coupons pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities (including the reasonable
fees and expenses of its agents and counsel) which might be incurred by it in
compliance with such request or direction.


 


(vi)                              The Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled upon reasonable notice and at reasonable times during normal
business hours to examine the books, records and premises of the Company,
personally or by agent or attorney.


 


(vii)                           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.


 


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


 


(ix)                                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.


 


(x)                                   The permissive
rights of the Trustee enumerated herein shall not be construed as duties.


 


(xi)                                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 Outstanding Securities of a series
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 such Securities.


 


(xii)                             Before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate
(unless other evidence is specifically prescribed herein).  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’
Certificate.


 


47

















 


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


 


(xiv)                         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.


 


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


 


(xvi)                         Anything in
this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including but not limited to loss of profit), even if the Trustee
has been advised as to the likelihood of such loss or damage and regardless of
the form of action.


 


(xvii)                      The Trustee
shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including acts of
God; earthquakes; fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities,
computer (hardware or software) or communication services; accidents; labor
disputes; acts of civil or military authority and governmental action.


 


The
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


Section 6.03                                Not Responsible
for Recitals or Issuance of Securities.


 


The
recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, and in any coupons shall
be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities or coupons,
except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth therein.  Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.


 


Section 6.04                                May Hold
Securities.


 


The
Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the 


 


48

















 


same
rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.


 


Section 6.05                                Money Held in
Trust.


 


Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. 
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.


 


Section 6.06                                Compensation
and Reimbursement and Indemnification of Trustee.


 


The
Company agrees:


 


(i)                                     To pay to the
Trustee or any predecessor Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as has been agreed upon
from time to time in writing (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust).


 


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


 


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


 


As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 5.01 occurs, the expenses and compensation for such
services are intended to constitute expenses of administration under Title 11,
U.S. Code, or any similar Federal, State or analogous foreign law for the
relief of debtors.


 


The
provisions of this Section 6.06 shall survive the resignation or removal
of the Trustee and the satisfaction, termination or discharge of this
Indenture.


 


Section 6.07                                Corporate
Trustee Required; Eligibility.


 


There
shall at all times be a Trustee hereunder that shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000.  If
such 


 


49

















 


corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.  If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


Section 6.08                                Disqualification;
Conflicting Interests.


 


If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.


 


Section 6.09                                Resignation and
Removal; Appointment of Successor.


 


(a)                                  No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 6.10.


 


(b)                                 The Trustee may resign at
any time with respect to the Securities of one or more series by giving written
notice thereof to the Company.


 


(c)                                  The Trustee may be removed
at any time with respect to the Securities of any series by (i) the
Company, by an Officers’ Certificate
delivered to the Trustee, provided  that contemporaneously
therewith (x) the Company immediately appoints a successor Trustee with
respect to the Securities of such series meeting the requirements of Section 6.07
hereof and (y) the terms of Section 6.10 hereof are complied with in
respect of such appointment (the Trustee being removed hereby agreeing to
execute the instrument contemplated by Section 6.10(b) hereof, if
applicable, under such circumstances) and provided  further that
no Default with respect to such Securities shall have occurred and then be
continuing at such time, or (ii) Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.


 


(d)                                 If at any time:


 


(i)                                     the Trustee
shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months, or


 


(ii)                                  the Trustee
shall cease to be eligible under Section 6.07 and shall fail to resign
after written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months, or


 


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


 


then,
in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder


 


50
















 


of
a Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.


 


(e)           If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of a notice of
resignation or the delivery of an Act of removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


(f)            If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series).  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to Securities of such
series.


 


(g)           The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 1.06.  Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.


 


Section 6.10                                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 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 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, subject nevertheless to its claim, if any, provided for in Section 6.06.


 


(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 that (i) shall
contain such provisions as 


 


51

















 


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) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (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 and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.  Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the
respective definition of those terms in Section 1.01 which contemplate
such situation.


 


(c)           Upon
request of any such successor Trustee, the Company shall execute any and all
instruments reasonably necessary to 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.


 


Section 6.11                                Merger,
Conversion, Consolidation or Succession to Business.


 


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


 


52

















 


Section 6.12                                Appointment of
Authenticating Agent.


 


At
any time when any of the Securities remain Outstanding, the Trustee may appoint
an Authenticating Agent or Agents (which may be an Affiliate or Affiliates of
the Company) with respect to one or more series of Securities that shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or upon exchange, registration of transfer or
partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.  Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company.  Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 
Each Authenticating Agent shall be acceptable to the Company and, except
as may otherwise be provided pursuant to Section 3.01, shall at all times
be a bank or trust company or corporation organized and doing business and in
good standing under the laws of the United States of America or of any State or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $1,500,000 and
subject to supervision or examination by Federal or State authorities.  If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements of
the aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.  In
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.


 


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


 


An
Authenticating Agent for any series of Securities may at any time resign by giving
written notice of resignation to the Trustee for such series and to the
Company.  The Trustee for any series of
Securities may at any time terminate the agency of an Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company.  Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall
promptly give written notice of such appointment to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 1.06. 
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein.  No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.


 


The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation including reimbursement of its reasonable expenses for its
services under this Section.


 


53

















 


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


 


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


 


	
   

  	
  U.S.
  Bank National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  as
  Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


If
all of the Securities of a series may not be originally issued at one time, and
the Trustee does not have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the Company wishes to
have Securities of such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing need not
comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel), shall appoint in accordance with this Section an Authenticating
Agent (which, if so requested by the Company, shall be an Affiliate of the
Company) having an office in a Place of Payment designated by the Company with
respect to such series of Securities, provided that the terms and
conditions of such appointment are reasonably acceptable to the Trustee.


 


ARTICLE SEVEN


 


HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.01                                Disclosure of
Names and Addresses of Holders.


 


Every
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar nor any
agent of any of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section 312(b).


 


Section 7.02                                Preservation of
Information; Communications to Holders.


 


(a)           The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.01 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar.  


 


54

















 


The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.


 


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


 


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


 


Section 7.03                                Reports by
Trustee.


 


Within
60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit by mail to all Holders Securities as provided in TIA Section 313(c) a
brief report dated as of such May 15 which meets the requirements of TIA Section 313(a).


 


A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange, if any, upon which the
Securities are listed, with the Commission and with the Company.  The Company will promptly notify the Trustee
of the listing of the Securities on any stock exchange.  In the event that, on any such reporting
date, no events have occurred under the applicable sections of the TIA within
the 12 months preceding such reporting date, the Trustee shall be under no duty
or obligation to provide such reports.


 


Section 7.04                                Reports by
Company.


 


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


 


Delivery of such reports, information, and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers’ Certificates).


 


Section 7.05                                Calculation of
Original Issue Discount.


 


Upon
request of the Trustee, the Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.


 


55

















 


ARTICLE EIGHT


 


CONSOLIDATION, MERGER, CONVEYANCE
OR TRANSFER


 


Section 8.01                                Company May Consolidate, Etc.,
Only on Certain Terms.


 


Unless
otherwise provided in the terms of such Securities, the Company shall not
consolidate with or merge with or into any other corporation or convey or
transfer all or substantially all of its properties and assets to any Person,
unless:


 


(i)            either the Company shall be the continuing corporation,
or the corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or
transfer all or substantially all of the properties and assets of the Company
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;


 


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


 


(iii)          the Company and the successor Person have delivered to the
Trustee an Officers’ Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.


 


Section 8.02                                Successor
Person Substituted.


 


Upon
any consolidation or merger, or any conveyance or transfer of the properties
and assets of the Company substantially as an entirety in accordance with Section 8.01,
the successor corporation formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance or transfer
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company shall be discharged from all obligations
and covenants under this Indenture and the Securities and coupons and may be
dissolved and liquidated.


 


ARTICLE NINE


 


SUPPLEMENTAL INDENTURES


 


Section 9.01                                Supplemental
Indentures Without Consent of Holders.


 


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


 


56

















 


(i)            to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or


 


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


 


(iii)          to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such default; or


 


(iv)          to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form; provided
that any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or


 


(v)           to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture that is entitled to the
benefit of such provision; or


 


(vi)          to secure the Securities pursuant to the requirements of Section 8.01
or 10.06, or otherwise; or


 


(vii)         to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 2.01 and 3.01, including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or


 


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


 


(ix)           to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision herein, or
to make any other provisions with respect to 


 


57

















 


matters or questions arising under this
Indenture; provided that such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; or


 


(x)            to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 4.01, 14.02 and
14.03; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related coupons
or any other series of Securities in any material respect.


 


Section 9.02                                Supplemental
Indentures with Consent of Holders.


 


With
the consent of the Holders of not less than a majority in aggregate principal
amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture that affects such series of Securities or of
modifying in any manner the rights of the Holders of such series of Securities
and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:


 


(i)            change the Stated Maturity of the principal of (or
premium, if any) or any installment of principal of or interest on, any Security,
subject to the provisions of Section 3.08; or the terms of any sinking
fund with respect to any Security; or reduce the principal amount thereof or
the rate of interest (or change the manner of calculating the rate of interest,
thereon, or any premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts pursuant to Section 10.04
(except as contemplated by Section 8.01(i) and permitted by Section 9.01(i)),
or reduce the portion of the principal of an Original Issue Discount Security
or Indexed Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or upon the
redemption thereof or the amount thereof provable in bankruptcy pursuant to Section 5.04,
or adversely affect any right of repayment at the option of the Holder of any
Security, or change any Place of Payment where, or the Currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment Date, as the case
may be), or adversely affect any right to convert or exchange any Security as
may be provided pursuant to Section 3.01 herein, or modify the
subordination provisions set forth in Article Sixteen in a manner that is
adverse to the Holder of any Security or


 


(ii)           reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of Section 15.04
for quorum or voting, or


 


(iii)          modify any of the provisions of this Section, Section 5.13
or Section 10.07, except to increase any such percentage or to provide
that certain other provisions of this Indenture 


 


58

















 


cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder of a Security or coupon with respect to changes in the references to
“the Trustee”
and concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.10(b) and 9.01(viii).


 


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


 


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


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Persons entitled to consent to any indenture supplemental
hereto.  If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date that is eleven months after such record
date, any such consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.


 


Section 9.03                                Execution of
Supplemental Indentures.


 


In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, in addition to the documents required
by Section 1.02 of this Indenture, an Officers’ Certificate and an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
such supplemental indenture have been complied with.  The Trustee may, but 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.


 


Section 9.04                                Effect of
Supplemental Indentures.


 


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


 


Section 9.05                                Conformity with
Trust Indenture Act.


 


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


 


59

















 


Section 9.06                                Reference in
Securities to Supplemental Indentures.


 


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


 


ARTICLE TEN


 


COVENANTS


 


Section 10.01                          Payment of
Principal, Premium, if any, and Interest.


 


The
Company covenants and agrees for the benefit of the Holders of each series of
Securities and any coupons appertaining thereto that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture.  Any interest due on Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in Section 10.04
in respect of principal of (or premium, if any) such a Security, shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.  Unless otherwise specified with respect to
Securities of any series pursuant to Section 3.01, at the option of the
Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.  Unless
otherwise specified as contemplated by Section 3.01 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.


 


Section 10.02                          Maintenance of
Office or Agency.


 


If
Securities of a series are issuable only as Registered Securities, the Company
shall maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served.  If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the County of Suffolk,
the City of Boston, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B) subject
to any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or agency where
Securities of that series and related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on Securities
of that series pursuant to Section 10.04); provided, however,
that if the


 


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Securities
of that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of each such
office or agency.  If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 10.04) at the offices
specified in the Security, in London, England, and the Company hereby appoints
the Trustee as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company hereby appoints the Trustee at its
Corporate Trust Office its agent to receive all such presentations, surrenders,
notices and demands.


 


Unless
otherwise specified with respect to any Securities pursuant to Section 3.01,
no payment of principal, premium or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to any account maintained
with a financial institution located in the United States; provided, however,
that, if the Securities of a series are denominated and payable in Dollars,
payment of principal of (and premium, if any) and interest, if any, on any
Bearer Security (including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 10.04) shall be made at the
office of the Company’s Paying Agent
in the County of Suffolk, the City of Boston, if (but only if) payment in
Dollars of the full amount of such principal, premium, if any, interest or
Additional Amounts, as the case may be, at all offices or agencies outside the
United States maintained for such purpose by the Company in accordance with
this Indenture, is illegal or effectively precluded by exchange controls or
other similar restrictions.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. 
Unless otherwise specified with respect to any Securities pursuant to Section 3.01
with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the County of Suffolk, the City of Boston, and initially appoints
the Trustee as Paying Agent with its office at 1 Federal Street, 3rd Floor,
Boston, Massachusetts 02110, and as its agent to receive all such
presentations, surrenders, notices and demands.


 


Unless
otherwise specified with respect to any Securities pursuant to Section 3.01,
if and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable 


 


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in
a currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate
Agent.  The Company will notify the
Trustee of the name and address of any Exchange Rate Agent retained by it.


 


Section 10.03                          Money for
Securities Payments to Be Held in Trust.


 


If
the Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each
due date of the principal of (or premium, if any) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.01
for the Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the principal
(and premium, if any) and interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents for any series of Securities
and any related coupons, it will, on or before each due date of the principal
of (or premium, if any) or interest, if any, on any Securities of that series,
deposit with a Paying Agent a sum (in the Currency or Currencies described in
the preceding paragraph) sufficient to pay the principal (or premium, if any)
or interest, if any, so becoming due, such sum of money 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 its action or failure so to act.


 


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


 


Except
as otherwise provided in the Securities of any series, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Company upon Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such money
held in trust, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.


 


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Section 10.04                          Additional
Amounts.


 


If
the Securities of a series provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series or any coupon
appertaining thereto such Additional Amounts as may be specified as
contemplated by Section 3.01. 
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such series established pursuant to Section 3.01
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall
not be construed as excluding Additional Amounts in those provisions hereof
where such express mention is not made.


 


Except
as otherwise specified as contemplated by Section 3.01, if the Securities
of a series provide for the payment of Additional Amounts, at least 10 days
prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal premium is made), and
at least 10 days prior to each date of payment of principal, premium or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers’ Certificate,
the Company will furnish the Trustee and the Company’s
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers’ Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal,
premium or interest on the Securities of that series shall be made to Holders
of Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series.  If any such withholding shall be required,
then such Officers’ Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will
pay to the Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities.  In the event
that the Trustee or any Paying Agent, as the case may be, shall not so receive
the above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required
with respect to any payment of principal or interest with respect to any
Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal
and interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised.  The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers’ Certificate
furnished pursuant to this Section or in reliance on the Company’s not furnishing such an Officers’
Certificate.


 


Section 10.05                          Statement as to
Compliance.


 


The Company will deliver to the Trustee, within 120
days after the end of each fiscal year ending after the date hereof so long as
any Security is Outstanding hereunder, an Officers’ Certificate stating to the
knowledge of the signers thereof whether the Company is in default in the
performance of any of the terms, provisions or conditions of this
Indenture.  For purposes of this Section 10.05,
such default shall be determined without regard to any period of grace or
requirement of notice under this Indenture.


 


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Section 10.06                          Payment of
Taxes and Other Claims.


 


The Company will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon the Company
or upon the income, profits or property of the Company, and (2) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
lien upon the property of the Company, except where the failure to do so would
not be reasonably expected to have a material adverse effect on the business,
assets, financial condition or results of operations of the Company; provided,
however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.


 


Section 10.07                          Waiver of
Certain Covenants.


 


The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Section 10.06, and, as specified pursuant to Section 3.01(xv) for
Securities of any series, in any covenants of the Company added to Article Ten
pursuant to Section 3.01(xiv) or Section 3.01(xv) in
connection with the Securities of a series, if before or after the time for
such compliance the Holders of at least a majority in aggregate principal
amount of all Outstanding Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.


 


ARTICLE ELEVEN


 


REDEMPTION OF SECURITIES


 


Section 11.01                          Applicability
of Article.


 


Securities
of any series that are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance
with this Article.


 


Section 11.02                          Election to
Redeem; Notice to Trustee.


 


The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution.  In case
of any redemption at the election of the Company of less than all of the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of Securities of such series to be redeemed,
and, if applicable, of the tenor of the Securities to be redeemed, and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 11.03.  In the case of any redemption of Securities
of any series prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with such restriction.


 


64

















 


Section 11.03                          Selection by
Trustee of Securities to Be Redeemed.


 


If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series issued on such date with the
same terms not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate; provided that such method complies with
the rules of any national securities exchange or quotation system on which
the Securities are listed (which rules shall be certificated to the
Trustee by the Company or such national securities exchange at the Trustee’s
request), and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for
Securities of that series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than the minimum authorized denomination for
Securities of such series.


 


The
Trustee shall promptly notify the Company and the Security Registrar (if other
than itself) in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.


 


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


 


Section 11.04                          Notice of
Redemption.


 


Notice
of redemption shall be given in the manner provided in Section 1.06, not
less than 30 days nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified by the terms of such series established pursuant to
Section 3.01, to each Holder of Securities to be redeemed, but failure to
give such notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Security or portion thereof.


 


Any
notice that is mailed to the Holders of Registered Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice.


 


All
notices of redemption shall state:


 


(i)            the Redemption Date,


 


(ii)           the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 11.06,


 


(iii)          if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,


 


(iv)          in case any Security is to be redeemed in part only, the
notice that relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the 


 


65

















 


Holder will receive, without a charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed,


 


(v)           that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in Section 11.06
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall cease to accrue on
and after said date,


 


(vi)          the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any,


 


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


 


(viii)        that, unless otherwise specified in such
notice, Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company, the
Trustee for such series and any Paying Agent is furnished,


 


(ix)           if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.05 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and


 


(x)            the CUSIP number of such Security, if any.


 


A
notice of redemption published as contemplated by Section 1.06 need not
identify particular Registered Securities to be redeemed.  Notice of redemption of Securities to be
redeemed shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company.


 


Section 11.05                          Deposit of
Redemption Price.


 


On
or prior to 10:00 am, New York City time, on the Business Day prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, in accordance with
the terms of this Indenture, segregate and hold in trust as provided in Section 10.03)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series and except, if applicable, as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless otherwise specified pursuant to Section 3.01)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.


 


Section 11.06                          Securities
Payable on Redemption Date.


 


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 


 


66

















 


for
the Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) (together with accrued interest, if
any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest, if
any) such Securities shall if the same were interest-bearing cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void.  Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 10.02)
and, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest; and provided  further
that, unless otherwise specified as contemplated by Section 3.01,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.


 


If
any Bearer Security surrendered for redemption shall not be accompanied by all
appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless.  If thereafter
the Holder of such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 10.02) and, unless
otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.


 


If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the Redemption Price shall, until paid, bear interest from the
Redemption Date at the rate of interest set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield to Maturity of such
Security.


 


Section 11.07                          Securities
Redeemed in Part.


 


Any
Registered Security that is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.  If a
temporary global Security or permanent global Security is so surrendered, such
new Security so issued shall be a new temporary global Security or permanent
global Security, respectively.  However,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Company in its
sole discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date.


 


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ARTICLE TWELVE


 


SINKING FUNDS


 


Section 12.01                          Applicability
of Article.


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 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 such Securities of any series is herein referred to as an “optional
sinking fund payment”.  If provided for
by the terms of any Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in Section 12.02.  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 12.02                          Satisfaction of
Sinking Fund Payments with Securities.


 


The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (i) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (ii) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities; provided
that such Securities so delivered or applied as a credit have not been
previously so credited.  Such Securities
shall be received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.


 


Section 12.03                          Redemption of
Securities for Sinking Fund.


 


Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so delivered
and credited.  If such Officers’ Certificate shall specify an optional amount to be added
in cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified.  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 11.03
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 


 


68

















 


in
Section 11.04.  Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.06 and 11.07.


 


ARTICLE THIRTEEN


 


REPAYMENT AT THE OPTION OF
HOLDERS


 


Section 13.01                          Applicability
of Article.


 


Repayment
of Securities of any series before their Stated Maturity at the option of
Holders thereof shall be made in accordance with the terms of such Securities
and (except as otherwise specified by the terms of such series established
pursuant to Section 3.01) in accordance with this Article.


 


Section 13.02                          Repayment of
Securities.


 


Securities
of any series subject to repayment in whole or in part at the option of the
Holders thereof will, unless otherwise provided in the terms of such
Securities, be repaid at the Repayment Price thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities.  The Company
covenants that on or before 10:00 am, New York City time, on the Business Day
preceding the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) an amount of money in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and
except, if applicable, as provided in Sections 3.12(b), 3.12(d) and
3.12(e)) sufficient to pay the Repayment Price of, and (unless otherwise
specified pursuant to Section 3.01) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.


 


Section 13.03                          Exercise of
Option.


 


Securities
of any series subject to repayment at the option of the Holders thereof will
contain an “Option to Elect Repayment” form on the reverse of such Securities.  To be repaid at the option of the Holder, any
Security so providing for such repayment, with the “Option
to Elect Repayment” form on the reverse of such
Security duly completed by the Holder (or by the Holder’s
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date.  If less
than the entire Repayment Price of such Security is to be repaid in accordance
with the terms of such Security, the portion of the Repayment Price of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of such Security
surrendered that is not to be repaid, must be specified.  Any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part.  Except
as otherwise may be provided by the terms of any Security providing for
repayment at the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the Company.


 


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Section 13.04                          When Securities
Presented for Repayment Become Due and Payable.


 


If
Securities of any series providing for repayment at the option of the Holders
thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and
on and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if
the same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. 
Upon surrender of any such Security for repayment in accordance with
such provisions, together with all coupons, if any, appertaining thereto
maturing after the Repayment Date, the Repayment Price of such Security so to
be repaid shall be paid by the Company, together with accrued interest, if any,
to the Repayment Date; provided, however, that coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified pursuant to Section 3.01,
only upon presentation and surrender of such coupons; and provided  further
that installments of interest on Registered Securities, whose Stated Maturity
is prior to (or, if specified pursuant to Section 3.01, on) the Repayment
Date shall be payable (but without interest thereon, unless the Company shall
default in the payment thereof) to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.07.


 


If
any Bearer Security surrendered for repayment shall not be accompanied by all
appurtenant coupons maturing after the Repayment Date, such Security may be
paid after deducting from the amount payable therefor as provided in Section 13.02
an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless.  If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the preceding
sentence, such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified as contemplated
by Section 3.01, only upon presentation and surrender of those coupons.


 


If
any Security surrendered for repayment shall not be so repaid upon surrender
thereof, the Repayment Price shall, until paid, bear interest from the
Repayment Date at the rate of interest set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield to Maturity of such
Security.


 


Section 13.05                          Securities
Repaid in Part.


 


Upon
surrender of any Registered Security that is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, and of
like tenor, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered that is not to be repaid.  If a temporary global Security or permanent
global Security is so surrendered, such new Security so issued shall be a new
temporary global Security or a new permanent global Security, respectively.


 


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ARTICLE FOURTEEN


 


DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 14.01                          Applicability
of Article; Company’s Option to
Effect Defeasance or Covenant Defeasance.


 


If
pursuant to Section 3.01 provision is made for either or both of (a) defeasance
of the Securities of or within a series under Section 14.02 or (b) covenant
defeasance of the Securities of or within a series under Section 14.03,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 3.01 with
respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have either Section 14.02 (if applicable)
or Section 14.03 (if applicable) be applied to such Outstanding Securities
and any coupons appertaining thereto upon compliance with the conditions set
forth below in this Article.


 


Section 14.02                          Defeasance and
Discharge.


 


Upon
the Company’s exercise of the above option
applicable to this Section with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section 14.04
are satisfied (hereinafter, “defeasance”).  For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any coupons appertaining thereto, which shall thereafter be deemed to be “Outstanding” only for the
purposes of Section 14.05 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and
any coupons appertaining thereto to receive, solely from the trust fund
described in Section 14.04 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any coupons appertaining thereto when such payments
are due, (B) the Company’s obligations
with respect to such Securities under Sections 3.05, 3.06, 10.02 and 10.03 and
with respect to the payment of Additional Amounts, if any, on such Securities
as contemplated by Section 10.04, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article.  Subject to compliance with this Article Fourteen,
the Company may exercise its option under this Section notwithstanding the
prior exercise of its option under Section 14.03 with respect to such
Securities and any coupons appertaining thereto.  Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.


 


Section 14.03                          Covenant
Defeasance.


 


Upon
the Company’s exercise of the above option
applicable to this Section with respect to any Securities of or within a
series, the Company shall be released from its obligations under Section 10.06,
and, if specified pursuant to Section 3.01, its obligations under any
other covenant with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section 14.04
are satisfied (hereinafter, “covenant
defeasance”), and such Securities and any coupons 


 


71

















 


appertaining
thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Section 10.06, or such other covenant, but shall continue
to be deemed “Outstanding”
for all other purposes hereunder.  For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 5.01(iv) or
5.01(vii) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.  Following a covenant defeasance, payment of
such Securities may not be accelerated because of an Event of Default solely by
reference to such Sections specified above in this Section 14.03.


 


Section 14.04                          Conditions to
Defeasance or Covenant Defeasance.


 


The
following shall be the conditions to application of either Section 14.02
or Section 14.03 to any Outstanding Securities of or within a series and
any coupons appertaining thereto:


 


(i)                                     The Company
shall have irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 6.07
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for the benefit of, and
dedicated solely to, the Holders of such Securities and any coupons
appertaining thereto, (A) an amount (in such Currency in which such
Securities and any coupons appertaining thereto are then specified as payable
at Stated Maturity), or (B) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
Currency in which such Securities and coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, without reinvestment thereof, not later than one day before the due
date of any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any coupons appertaining thereto, money in an amount, or
(C) a combination thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (1) the principal of (and premium, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest and (2) any
mandatory sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Securities and any coupons appertaining thereto.


 


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


 


(iii)                               No Default or
Event of Default with respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of such deposit or,
insofar 


 


72

















 


as Sections 5.01(v) and 5.01(vi) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).


 


(iv)                              In the case of
an election under Section 14.02, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred.


 


(v)                                 In the case of
an election under Section 14.03, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.


 


(vi)                              The Company
shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to either the defeasance under Section 14.02 or the covenant
defeasance under Section 14.03 (as the case may be) have been complied
with.


 


(vii)                           Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance
shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.01.


 


Section 14.05                          Deposited Money
and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.


 


Subject
to the provisions of the last paragraph of Section 10.03, all money and
Government Obligations (or other property as may be provided pursuant to Section 3.01)
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 14.05, the “Trustee”) pursuant to Section 14.04
in respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.


 


Unless
otherwise specified with respect to any Security pursuant to Section 3.01,
if, after a deposit referred to in Section 14.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 


 


73

















 


14.04(a) has
been made in respect of such Security, or (b) a Conversion Event occurs as
contemplated in Section 3.12(d) or 3.12(e) or by the terms of
any Security in respect of which the deposit pursuant to Section 14.04(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any) and interest, if any, on such Security as the same becomes due out of
the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such
Currency in effect (as nearly as feasible) at the time of the Conversion Event.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the money or Government Obligations deposited
pursuant to Section 14.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.


 


Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or
Government Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 14.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.


 


If,
after the Company has made a deposit with the Trustee pursuant to Section 14.04,
the Trustee is unable to apply any money in accordance with Section 14.05  by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the applicable Securities shall
be revived and reinstated as though no deposit had occurred pursuant to Section 14.04
until such time as the Trustee is permitted to apply all such money in
accordance with this Article Fourteen; provided, however, that if the
Company has made any payment of the principal of or interest on any series of
Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive any
such payment from the money held by the Trustee.


 


Money
deposited with the Trustee in trust pursuant to this Section 14.05 shall
not be subject to the subordination provisions of Article Sixteen.


 


ARTICLE FIFTEEN


 


MEETINGS OF HOLDERS OF SECURITIES


 


Section 15.01                          Purposes for
Which Meetings May Be Called.


 


If
Securities of a series are issuable as Bearer Securities, a meeting of Holders
of Securities of such series may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.


 


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Section 15.02                          Call, Notice
and Place of Meetings.


 


(a)                                  The Trustee may at any time
call a meeting of Holders of Securities of any series for any purpose specified
in Section 15.01, to be held at such time and at such place in the County
of Suffolk, the City of Boston or in London as the Trustee shall
determine.  Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 1.06, not less than 21
nor more than 180 days prior to the date fixed for the meeting.


 


(b)                                 In case at any time the
Company, pursuant to a Board Resolution, or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 15.01, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication or mailing
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in the County of Suffolk, the City of Boston or in London for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.


 


Section 15.03                          Persons
Entitled to Vote at Meetings.


 


To
be entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (i) a Holder of one or more Outstanding Securities of such
series, or (ii) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders.  The only Persons
who shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 15.04                          Quorum; Action.


 


The
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent, waiver, request,
demand, notice, authorization, direction or other action that this Indenture
expressly provides may be made, given or taken by the Holders of not less than
a specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a
quorum.  In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved.  In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. 
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 15.02(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened.  Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.


 


75

















 


Except
as limited by the proviso to Section 9.02, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 9.02,
any resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.


 


Any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on
all the Holders of Securities of such series and the related coupons, whether
or not present or represented at the meeting.


 


Notwithstanding
the foregoing provisions of this Section 15.04, if any action is to be
taken at a meeting of Holders of Securities of any series with respect to any
consent, waiver, request, demand, notice, authorization, direction or other
action that this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage in principal amount of all Outstanding
Securities affected thereby, or of the Holders of such series and one or more
additional series:


 


(i)                                     there shall be
no minimum quorum requirement for such meeting; and


 


(ii)                                  the principal
amount of the Outstanding Securities of such series that vote in favor of such
consent, waiver, request, demand, notice, authorization, direction or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.


 


Section 15.05                          Determination
of Voting Rights; Conduct and Adjournment of Meetings.


 


(a)                                  Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of Securities of a series
in regard to proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.  Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in Section 1.04
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.04
to certify to the holding of Bearer Securities. 
Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.


 


(b)                                 The Trustee shall, by an
instrument in writing appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders of Securities as
provided in Section 15.02(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman.  A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.


 


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(c)                                  At any meeting of Holders,
each Holder of a Security of such series or proxy shall be entitled to one vote
for each $1,000 principal amount of the Outstanding Securities of such series
held or represented by such Holder; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding.  The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.


 


(d)                                 Any meeting of Holders of
Securities of any series duly called pursuant to Section 15.02 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting, and the meeting may be held as so adjourned
without further notice.


 


Section 15.06                          Counting Votes
and Recording Action of Meetings.


 


The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them.  The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting.  A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any Series shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 15.02 and, if applicable, Section 15.04.  Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.  Any record so signed and
verified shall be conclusive evidence of the matters therein stated.


 


ARTICLE SIXTEEN


 


SUBORDINATION OF SECURITIES


 


Section 16.01                          Agreement to
Subordinate.


 


The
Company, for itself, its successors and assigns, covenants and agrees, and each
Holder of Senior Subordinated Securities by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any) and interest, if any, on each and all of the Senior Subordinated
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.


 


The
Company, for itself, its successors and assigns, covenants and agrees, and each
Holder of Junior Subordinated Securities by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any) and interest, if any, on each and all of the Junior Subordinated
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness and Senior Subordinated Indebtedness.


 


77

















 


Section 16.02                          Distribution on
Dissolution, Liquidation and Reorganization; Subrogation of Subordinated
Securities.


 


Upon
any distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the holders thereof by a lawful plan of
reorganization under applicable bankruptcy law):


 


(i)                                     the holders of
all Senior Indebtedness shall be entitled to receive payment in full of the
principal thereof (and premium, if any) and interest due thereon before the
Holders of the Subordinated Securities are entitled to receive any payment upon
the principal (or premium, if any) or interest, if any, on indebtedness
evidenced by the Subordinated Securities; and


 


(ii)                                  the holders of
all Senior Subordinated Indebtedness shall be entitled to receive payment in
full of the principal thereof (and premium, if any) and interest due thereon
before the Holders of the Junior Subordinated Securities are entitled to
receive any payment upon the principal (or premium, if any) or interest, if
any, on indebtedness evidenced by the Junior Subordinated Securities; and


 


(iii)                               any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article Sixteen
shall be paid by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and


 


(iv)                              in the event
that, notwithstanding the foregoing, any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
shall be received by the Trustee or the Holders of the Subordinated Securities
before all Senior Indebtedness is paid in full, such payment or distribution
shall be paid over, upon written notice to the Trustee, to the holder of such
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instrument evidencing
any of such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.


 


Subject
to the payment in full of all Senior Indebtedness, the Holders of the
Subordinated Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the 


 


78

















 


principal
of (and premium, if any) and interest, if any, on the Subordinated Securities
shall be paid in full and no such payments or distributions to the Holders of
the Subordinated Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Subordinated Securities be deemed to be a payment by the Company
to or on account of the Subordinated Securities.  It is understood that the provisions of this Article Sixteen
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Subordinated Securities, on the one hand, and the holders of
the Senior Indebtedness, on the other hand. 
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Subordinated Securities is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Subordinated Securities, the obligation of
the Company, which is unconditional and absolute, to pay to the Holders of the
Subordinated Securities the principal of (and premium, if any) and interest, if
any, on the Subordinated Securities as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of the
Holders of the Subordinated Securities and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or in the
Subordinated Securities prevent the Trustee or the Holder of any Subordinated
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article Sixteen
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.  Upon any payment or distribution of assets of
the Company referred to in this Article Sixteen, the Trustee, subject to
the provisions of Section 6.01, shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Sixteen.


 


If
the Trustee or any Holder of Subordinated Securities does not file a proper
claim or proof of debt in the form required in any proceeding referred to above
prior to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Indebtedness is hereby authorized,
and has the right, to file an appropriate claim or claims for or on behalf of
such Holder of Subordinated Securities.


 


With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.  The
Trustee does not owe any fiduciary duties to the holders of Senior
Indebtedness, including any holder of Securities other than Securities issued
under this Indenture.


 


Section 16.03                          No Payment on
Subordinated Securities in Event of Default on Senior Indebtedness.


 


No
payment by the Company on account of principal (or premium, if any), sinking
funds or interest, if any, on the Subordinated Securities shall be made unless
full payment of amounts then due for principal (premium, if any), sinking funds
and interest on Senior Indebtedness has been made or duly provided for in money
or money’s worth.


 


79

















 


Section 16.04                          Payments on
Subordinated Securities Permitted.


 


Nothing
contained in this Indenture or in any of the Subordinated Securities shall (a) affect
the obligation of the Company to make, or prevent the Company from making, at
any time except as provided in Sections 16.02 and 16.03, payments of principal
of (or premium, if any) or interest, if any, on the Subordinated Securities or (b) prevent
the application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on the Subordinated Securities, unless the Trustee shall have received
at its Corporate Trust Office written notice of any event prohibiting the
making of such payment more than three Business Days prior to the date fixed
for such payment.


 


Section 16.05                          Authorization
of Holders to Trustee to Effect Subordination.


 


Each
Holder of Subordinated Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Sixteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.


 


Section 16.06                          Notices to
Trustee.


 


Notwithstanding
the provisions of this Article or any other provisions of this Indenture,
neither the Trustee nor any Paying Agent (other than the Company) shall be
charged with knowledge of the existence of any Senior Indebtedness or of any
event which would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
reasonably satisfactory to the Trustee of such holding of Senior Indebtedness
or of the authority of such trustee; provided, however, that if
at least three Business Days prior to the date upon which by the terms hereof
any such moneys may become payable for any purpose (including, without
limitation, the payment of either the principal (or premium, if any) or
interest, if any, on any Subordinated Security) the Trustee shall not have
received with respect to such moneys the notice provided for in this Section 16.06,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary, which may be received by it within three Business
Days prior to such date.  The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder.  In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article Sixteen
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.


 


80
















 


Section 16.07                          Trustee as
Holder of Senior Indebtedness.


 


The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.


 


Nothing
in this Article Sixteen shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.


 


Section 16.08                          Modifications
of Terms of Senior Indebtedness.


 


Any
renewal or extension of the time of payment of any Senior Indebtedness or the
exercise by the holders of Senior Indebtedness of any of their rights under any
instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Subordinated Securities or the
Trustee.


 


No
compromise, alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any liability or
obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article Sixteen
or of the Subordinated Securities relating to the subordination thereof.


 


Section 16.09                          Reliance on
Judicial Order or Certificate of Liquidating Agent.


 


Upon
any payment or distribution of assets of the Company referred to in this Article Sixteen,
the Trustee and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Subordinated Securities, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Sixteen.


 


* * * * *


 


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


 


81

















 


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


 


	
   

  	
  ARES
  CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard S. Davis

  
	
   

  	
  Name:

  	
  Richard
  S. Davis

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen R. Beard

  
	
   

  	
  Name:

  	
  Karen R. Beard

  
	
   

  	
  Title:

  	
  Vice President

  



 


82

















 


EXHIBIT A


 


FORMS OF CERTIFICATION


 

















 


EXHIBIT A-1


 


FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED

TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST

PAYABLE PRIOR TO THE EXCHANGE DATE


 


CERTIFICATE


 


[Insert title or sufficient description of Securities to be delivered]


 


This
is to certify that, as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by
person(s) that are not “United States persons” (“United States
Person(s)”) within the meaning of Section 7701(a)(30) of the United
States Internal Revenue Code of 1986, as amended (the “Code”), (ii) are
owned by United States person(s) that are (a) foreign branches of
United States financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v)[(iv)] are
herein referred to as “financial
institutions”) purchasing for their own account or
for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Ares Capital Corporation or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Code and the United States Treasury Regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.


 


As
used herein, “United States” means the United States of America (including the States
and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.


 


We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.


 


This
certificate excepts and does not relate to [U.S.$]
                        
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.


 


We
understand that this certificate may be required in connection with certain tax
legislation in the United States.  If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.


 


	
  Dated:

  	
   

  	
   

  



 


A-1

















 


	
  [To
  be dated no earlier than the 15th day prior to

  (i) the Exchange Date or (ii) the relevant Interest

  Payment Date occurring prior to the Exchange

  Date, as applicable]

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Person Making Certification]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Authorized
  Signatory)

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


A-1

















 


EXHIBIT A-2


 


FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND

CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF

A PORTION OF A TEMPORARY GLOBAL SECURITY

OR TO OBTAIN INTEREST PAYABLE PRIOR

TO THE EXCHANGE DATE


 


CERTIFICATE


 


[Insert title or sufficient description of Securities to be delivered]


 


This
is to certify that, based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our “Member
Organizations”) substantially in the form
attached hereto, as of the date hereof, [U.S.$] principal amount of the
above-captioned Securities (i) is owned by person(s) that are not “United
States persons” (“United States Person(s)”) within the meaning of Section 7701(a)(30)
of the United States Internal Revenue Code of 1986, as amended (the “Code”),
(ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)[(iv)] are
herein referred to as “financial
institutions”) purchasing for their own account or
for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise Ares
Capital Corporation or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Code and the United States Treasury Regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect,
that financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have
not acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.


 


As
used herein, “United States” means the United States of America (including the States
and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.


 


We
further certify that (i) we are not making available herewith for exchange
(or, if relevant, collection of any interest) any portion of the temporary
global Security representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member Organizations
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.


 


We
understand that this certification is required in connection with certain tax
legislation in the United States.  If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.


 


A-2

















 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [To
  be dated no earlier than the Exchange

  Date or the relevant Interest Payment

  Date occurring prior to the Exchange

  Date, as applicable]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [                                                     
  ],

  
	
   

  	
   

  	
   

  	
  as
  Operator of the Euroclear System

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


A-2