exv4wxny






Exhibit 4(n)




HAWAIIAN ELECTRIC INDUSTRIES, INC.




AND




U.S. BANK NATIONAL ASSOCIATION, as Trustee




FORM OF SENIOR INDENTURE




Dated as of                     




 









 








CROSS REFERENCE SHEET1




Between



Provisions of the Trust Indenture Act of 1939 and the Indenture dated as of                      between
HAWAIIAN ELECTRIC INDUSTRIES, INC. and U.S. BANK NATIONAL ASSOCIATION, as Trustee:




	 	 	 
	SECTION OF THE ACT	 	SECTION OF INDENTURE
	310(a)(1) and (2)

	 	6.9 
	310(a)(3) and (4)

	 	Inapplicable
	310(b)

	 	6.8 and 6.10(a), (b) and (d)
	310(c)

	 	Inapplicable
	311(a)

	 	6.13 
	311(b)

	 	6.13 
	311(c)

	 	Inapplicable
	312(a)

	 	4.1 and 4.2 
	312(b)

	 	4.2 
	312(c)

	 	4.2 
	313(a)

	 	4.4 
	313(b)(1)

	 	Inapplicable
	313(b)(2)

	 	4.4 
	313(c)

	 	4.4, 5.11, 6.10, 6.11, 8.2 and 12.2 
	313(d)

	 	4.4 
	314(a)

	 	3.5 and 4.3 
	314(b)

	 	Inapplicable
	314(c)(1) and (2)

	 	11.5 
	314(c)(3)

	 	Inapplicable
	314(d)

	 	Inapplicable
	314(e)

	 	11.5 
	314(f)

	 	Inapplicable
	315(a), (c) and (d)

	 	6.1 
	315(b)

	 	5.11 
	315(e)

	 	5.12 
	316(a)(1)

	 	5.9 and 5.10 
	316(a)(2)

	 	Not required
	316(a) (last sentence)

	 	7.4 
	316(b)

	 	5.7 
	317(a)

	 	5.2 
	317(b)

	 	3.4(a) and (b)
	318(a)

	 	11.7 








 




			
	1	 	This Cross Reference Sheet is not part of the Indenture.




 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE ONE
	 
	 	 	 	 	 	 
	DEFINITIONS
	 
	 	 	 	 	 	 
	SECTION 1.1
	 	Certain Terms Defined	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE TWO
	 
	 	 	 	 	 	 
	SECURITIES
	 
	 	 	 	 	 	 
	SECTION 2.1
	 	Forms Generally	 	 	6	 
	SECTION 2.2
	 	Form of Trustee’s Certificate of Authentication	 	 	6	 
	SECTION 2.3
	 	Amount Unlimited; Issuable In Series	 	 	7	 
	SECTION 2.4
	 	Authentication and Delivery of Securities	 	 	9	 
	SECTION 2.5
	 	Execution of Securities	 	 	12	 
	SECTION 2.6
	 	Certificate of Authentication	 	 	12	 
	SECTION 2.7
	 	Denomination and Date of Securities; Payments of Interest	 	 	12	 
	SECTION 2.8
	 	Registration, Transfer and Exchange	 	 	13	 
	SECTION 2.9
	 	Mutilated, Defaced, Destroyed, Lost and Stolen Securities	 	 	16	 
	SECTION 2.10
	 	Cancellation of Securities; Destruction Thereof	 	 	17	 
	SECTION 2.11
	 	Temporary Securities	 	 	18	 
	SECTION 2.12
	 	Computation of Interest	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE THREE
	 
	 	 	 	 	 	 
	COVENANTS OF THE ISSUER
	 


	SECTION 3.1
	 	Payment of Principal and Interest	 	 	18	 
	SECTION 3.2
	 	Offices for Payments, Etc.	 	 	19	 
	SECTION 3.3
	 	Appointment to Fill a Vacancy in Office of Trustee	 	 	20	 
	SECTION 3.4
	 	Paying Agents	 	 	20	 
	SECTION 3.5
	 	Written Statement to Trustee	 	 	21	 
	SECTION 3.6
	 	Corporate Existence	 	 	21	 
	SECTION 3.7
	 	Maintenance of Properties	 	 	21	 
	SECTION 3.8
	 	Payment of Taxes and Other Claims	 	 	21	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 3.9
	 	Restriction on Liens	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE FOUR
	 
	 	 	 	 	 	 
	SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
	 
	 	 	 	 	 	 
	SECTION 4.1
	 	Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders	 	 	23
	SECTION 4.2
	 	Preservation and Disclosure of Securityholders Lists	 	 	24	 
	SECTION 4.3
	 	Reports by the Issuer	 	 	25	 
	SECTION 4.4
	 	Reports by the Trustee	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE
	 
	 	 	 	 	 	 
	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 
	 	 	 	 	 	 
	SECTION 5.1
	 	Event of Default Defined; Acceleration of Maturity; Waiver of Default	 	 	25	 
	SECTION 5.2
	 	Collection of Indebtedness by Trustee; Trustee May Prove Debt	 	 	28	 
	SECTION 5.3
	 	Application of Proceeds	 	 	30	 
	SECTION 5.4
	 	Suits for Enforcement	 	 	31	 
	SECTION 5.5
	 	Restoration of Rights on Abandonment of Proceedings	 	 	31	 
	SECTION 5.6
	 	Limitations on Suits by Securityholders	 	 	31	 
	SECTION 5.7
	 	Unconditional Right of Securityholders to Institute Certain Suits	 	 	32	 
	SECTION 5.8
	 	Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	 	 	32	 
	SECTION 5.9
	 	Control by Holders of Securities	 	 	32	 
	SECTION 5.10
	 	Waiver of Past Defaults	 	 	33	 
	SECTION 5.11
	 	Trustee to Give Notice of Default, But May Withhold in Certain Circumstances	 	 	33	 
	SECTION 5.12
	 	Right of Court to Require Filing of Undertaking to Pay Costs	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE SIX
	 
	 	 	 	 	 	 
	CONCERNING THE TRUSTEE
	 
	 	 	 	 	 	 
	SECTION 6.1
	 	Duties and Responsibilities of the Trustee; During Default; Prior to Default	 	 	34	 
	SECTION 6.2
	 	Certain Rights of the Trustee	 	 	35	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 6.3
	 	Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof	 	 	36	 
	SECTION 6.4
	 	Trustee and Agents May Hold Securities or Coupons; Collections, Etc.	 	 	36	 
	SECTION 6.5
	 	Moneys Held by Trustee	 	 	36	 
	SECTION 6.6
	 	Compensation and Indemnification of Trustee and Its Prior Claim	 	 	37	 
	SECTION 6.7
	 	Right of Trustee to Rely on Officer’s Certificate, Etc.	 	 	37	 
	SECTION 6.8
	 	Indentures Not Creating Potential Conflicting Interests for the Trustee	 	 	37	 
	SECTION 6.9
	 	Persons Eligible for Appointment as Trustee	 	 	37	 
	SECTION 6.10
	 	Resignation and Removal; Appointment of Successor Trustee	 	 	38	 
	SECTION 6.11
	 	Acceptance of Appointment by Successor Trustee	 	 	39	 
	SECTION 6.12
	 	Merger, Conversion, Consolidation or Succession to Business of Trustee	 	 	40	 
	SECTION 6.13
	 	Preferential Collection of Claims Against Issuer	 	 	41	 
	SECTION 6.14
	 	Appointment of Authenticating Agent	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN
	 
	 	 	 	 	 	 
	CONCERNING THE SECURITYHOLDERS
	 
	 	 	 	 	 	 
	SECTION 7.1
	 	Evidence of Action Taken by Securityholders	 	 	45	 
	SECTION 7.2
	 	Proof of Execution of Instruments and of Holding of Securities	 	 	45	 
	SECTION 7.3
	 	Holders to Be Treated as Owners	 	 	46	 
	SECTION 7.4
	 	Securities Owned by Issuer Deemed Not Outstanding	 	 	47	 
	SECTION 7.5
	 	Right of Revocation of Action Taken	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT
	 
	 	 	 	 	 	 
	SUPPLEMENTAL INDENTURES
	 
	 	 	 	 	 	 
	SECTION 8.1
	 	Supplemental Indentures Without Consent of Securityholders	 	 	48	 
	SECTION 8.2
	 	Supplemental Indentures With Consent of Securityholders	 	 	49	 
	SECTION 8.3
	 	Effect of Supplemental Indenture	 	 	50	 
	SECTION 8.4
	 	Documents to Be Given to Trustee	 	 	50	 
	SECTION 8.5
	 	Notation on Securities in Respect of Supplemental Indentures	 	 	50	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE NINE
	 
	 	 	 	 	 	 
	CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 
	 	 	 	 	 	 
	SECTION 9.1
	 	Issuer May Consolidate, Etc., Only on Certain Terms	 	 	51	 
	SECTION 9.2
	 	Successor Corporation Substituted	 	 	52	 
	SECTION 9.3
	 	Restrictions on Dispositions of HECO Shares	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE TEN
	 
	 	 	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
	 
	 	 	 	 	 	 
	SECTION 10.1
	 	Satisfaction and Discharge of Indenture	 	 	52	 
	SECTION 10.2
	 	Application by Trustee of Funds Deposited for Payment of Securities	 	 	56	 
	SECTION 10.3
	 	Repayment of Moneys Held by Paying Agent	 	 	56	 
	SECTION 10.4
	 	Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years	 	 	56	 
	SECTION 10.5
	 	Indemnity for U.S. Government Obligations	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE ELEVEN
	 
	 	 	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 
	 	 	 	 	 	 
	SECTION 11.1
	 	Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability	 	 	57	 
	SECTION 11.2
	 	Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and Coupons	 	 	57	 
	SECTION 11.3
	 	Successors and Assigns of Issuer Bound by Indenture	 	 	57	 
	SECTION 11.4
	 	Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons	 	 	57	 
	SECTION 11.5
	 	Officer's Certificates and Opinions of Counsel; Statements to Be Contained Therein	 	 	58	 
	SECTION 11.6
	 	Payments Due on Saturdays, Sundays and Holidays	 	 	59	 
	SECTION 11.7
	 	Conflict of any Provision of Indenture with Trust Indenture Act of 1939	 	 	59	 
	SECTION 11.8
	 	New York Law to Govern	 	 	59	 
	SECTION 11.9
	 	Counterparts	 	 	59	 
	SECTION 11.10
	 	Effect of Headings	 	 	59	 
	SECTION 11.11
	 	Securities in a Foreign Currency	 	 	59	 






iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 11.12
	 	Judgment Currency	 	 	60	 
	SECTION 11.13
	 	Separability Clause	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE TWELVE
	 
	 	 	 	 	 	 
	REDEMPTION OF SECURITIES AND SINKING FUNDS
	 
	 	 	 	 	 	 
	SECTION 12.1
	 	Applicability of Article	 	 	61	 
	SECTION 12.2
	 	Notice of Redemption; Partial Redemptions	 	 	61	 
	SECTION 12.3
	 	Payment of Securities Called for Redemption	 	 	62	 
	SECTION 12.4
	 	Exclusion of Certain Securities from Eligibility for Selection for Redemption	 	 	63	 
	SECTION 12.5
	 	Mandatory and Optional Sinking Funds	 	 	63	 






v









 





 




     THIS INDENTURE, dated as of                      between HAWAIIAN ELECTRIC INDUSTRIES, INC., a Hawaii
corporation (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, as trustee (the “Trustee”),



W I T N E S S E T H :




     WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;



     WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and



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



     NOW, THEREFORE, in consideration of the premises and the purchases of the Securities by the
holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time of the Securities and of the
coupons, if any, appertaining thereto as follows:



ARTICLE ONE




DEFINITIONS




     SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise expressly provided or
unless the context otherwise clearly requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in this Section. All
other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the
definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of
1939, including terms defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with United States generally accepted accounting
principles, and the term “GENERALLY ACCEPTED ACCOUNTING PRINCIPLES” means such accounting
principles as are generally accepted at the time of any computation. The words “HEREIN”, “HEREOF”
and “HEREUNDER” and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.



     “AUTHENTICATING AGENT” shall have the meaning set forth in Section 6.14.



 









 





     “AUTHORIZED NEWSPAPER” means a newspaper (which, in the case of The City of New York, will, if
practicable, be The Wall Street Journal (Eastern Edition) published in an official language of the
country of publication customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or in any other applicable city or
country. If it shall be impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a sufficient publication
of such notice.



     “BOARD OF DIRECTORS” means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act on its behalf.



     “BOARD RESOLUTION” means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted or consented to by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.



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



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



     “CONSOLIDATED NET ASSETS” means, the total amount of assets appearing on the consolidated
balance sheet of the Issuer and its subsidiaries less, without duplication: (a) all current
liabilities (excluding current liabilities of American Savings Bank, F.S.B. and any current
liabilities which are by their terms extendable or renewable at the sole option of the obligor
thereon without requiring the consent of the obligee to a date more than 12 months after the date
of determination); (b) all reserves for depreciation and other asset valuation reserves but
excluding any reserves for deferred Federal income taxes arising from accelerated amortization or
otherwise; and (c) all appropriate adjustments on account of minority interests of other persons
holding common stock in any subsidiary and trust originated preferred securities. Consolidated Net
Assets are determined in accordance with generally accepted accounting principles and as of a date
not more than 90 days prior to the happening of the event for which such determination is being
made.



     “CORPORATE TRUST OFFICE” means the office of the Trustee at which this Indenture shall, at any
particular time, be principally administered, which office is, at the date as of which this
Indenture is dated, located in the Borough of Manhattan, the City and State of New York.



     “COUPON” means any interest coupon appertaining to an Unregistered Security.



     “COVENANT DEFEASANCE” shall have the meaning set forth in Section 10.1(C).



2









 





     “DEPOSITARY” means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “DEPOSITARY” shall mean or include each
Person who is then a Depositary hereunder, and if at any time there is more than one such Person,
“DEPOSITARY” as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.



     “DOLLAR” means the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.



     “EVENT OF DEFAULT” means any event or condition specified as such in Section 5.1.



     “FAIR VALUE” when used with respect to any Voting Stock means the fair value as determined in
good faith by the Board of Directors of the Issuer.



     “FOREIGN CURRENCY” means a currency issued by the government of a country other than the
United States.



     “HOLDER”, “HOLDER OF SECURITIES”, “SECURITYHOLDER” or other similar terms mean (a) in the case
of any Registered Security, the person in whose name such Security is registered in the security
register kept by the Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining thereto,
as the case may be.



     “INDEBTEDNESS” shall have the meaning set forth in Section 5.1 and, for purposes of Section
3.9 only, the meaning set forth therein.



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



     “ISSUER” means (except as otherwise provided in Article Six) Hawaiian Electric Industries,
Inc., a Hawaii corporation and, subject to Article Nine, its successors and assigns.



     “ISSUER ORDER” means a written statement, request or order of the Issuer signed in its name by
the president, any vice president or the treasurer or controller of the Issuer.



     “JUDGMENT CURRENCY” shall have the meaning set forth in Section 11.12.



     “OFFICER’S CERTIFICATE” means a certificate signed by the president, any vice president, the
treasurer or the controller of the Issuer and delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for
in Section 11.5.



     “OPINION OF COUNSEL” means an opinion in writing signed by the General Counsel of the Issuer
or by such other legal counsel who may be an employee of or counsel to the Issuer



3









 







and who shall be satisfactory to the Trustee. Each such opinion shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in Section 11.5.



     “ORIGINAL ISSUE DATE” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



     “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 5.1.



     “OUTSTANDING” (except as otherwise provided in Section 7.4), when used with reference to
Securities, shall, subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture, except



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




          (b) Securities, or portions thereof, for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.1) in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent), provided that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as herein provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and




          (c) Securities which shall have been paid or in substitution for which other Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to
any such Security as to which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding obligation of the
Issuer).




     In determining whether the Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.



     “PERIODIC OFFERING” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.



4









 





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



     “PLACE OF PAYMENT” when used with respect to the Securities of any series, means the place or
places where the principal of and interest on the Securities of that series are payable as
specified as contemplated by Section 2.3.



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



     “RECORD DATE” shall have the meaning set forth in Section 2.7.



     “REGISTERED GLOBAL SECURITY” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.



     “REGISTERED SECURITY” means any Security registered on the Security register of the Issuer.



     “REQUIRED CURRENCY” shall have the meaning set forth in Section 11.12.



     “RESPONSIBLE OFFICER” when used with respect to the Trustee means any officer of the Trustee
with responsibility for administration of this Indenture.



     “SECURITY” or “SECURITIES” (except as otherwise provided in Section 7.4) has the meaning
stated in the first recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.



     “SUBSIDIARY” means any corporation, partnership or other entity of which at the time of
determination the Issuer owns or controls directly or indirectly more than 50% of the shares of
Voting Stock.



     “TRUST INDENTURE ACT OF 1939” (except as otherwise provided in Sections 8.1 and 8.2) means the
Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally
executed.



     “TRUSTEE” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article Six, shall also include any successor trustee. “Trustee” shall also
mean or include each Person who is then a trustee hereunder and if at any time there is more than
one such Person, “Trustee” as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.



     “UNREGISTERED SECURITY” means any Security other than a Registered Security.



     “U.S. GOVERNMENT OBLIGATIONS” shall have the meaning set forth in Section 10.1(A).



5









 





     “VOTING STOCK” means stock of any class or classes having general voting power under ordinary
circumstances to elect a majority of the board of directors, managers or trustees of the
corporation in question, provided that, for the purposes hereof, stock which carries only the right
to vote conditionally on the happening of an event shall not be considered voting stock whether or
not such event shall have happened.



     “YIELD TO MATURITY” means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.



ARTICLE TWO




SECURITIES 




     SECTION 2.1 Forms Generally. The Securities of each series and the Coupons, if any, to be
attached thereto shall be substantially in such form (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution,
an Officer’s Certificate detailing such establishment) or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.



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



     SECTION 2.2 Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of
authentication on all Securities shall be in substantially the following form:



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



	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, 


     as Trustee	 	 
	 
	 	 	 	 	 	 
	 
	 

	 	By
	 	 

Authorized Signatory”
	 	 






     If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustee’s Certificate of Authentication to be borne by the Securities of each
such series shall be substantially as follows:



6









 





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



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	,	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 

	 	 	 	as Authenticating Agent	 	 	 	 
	 
	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory”	 	 	 	 






     SECTION 2.3 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 each such series shall rank equally and
pari passu with all other unsecured and unsubordinated debt of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent established pursuant
to rather than set forth in a Board Resolution, in an Officer’s Certificate detailing such
establishment) or established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,




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




     (2) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);




     (3) if other than Dollars, the coin or currency in which the Securities of that series
are denominated (including, but not limited to, any Foreign Currency);




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




     (5) the rate or rates at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on which such interest shall
be payable and (in the case of Registered Securities) on which a record shall be taken for
the determination of Holders to whom interest is payable and/or the method by which
such rate or rates or date or dates shall be determined;




     (6) the place or places of payment where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section 3.2);




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



7









 






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




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




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




     (11) if other than the coin or currency in which the Securities of that series are
denominated, the coin or currency in which payment of the principal of or interest on the
Securities of such series shall be payable;




     (12) if the principal of or interest on the Securities of such series are to be
payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than
that in which the Securities are denominated, the period or periods within which, and the
terms and conditions upon which, such election may be made;




     (13) if the amount of payments of principal of and interest on the Securities of the
series may be determined with reference to an index based on a coin or currency other than
that in which the Securities of the series are denominated, the manner in which such amounts
shall be determined;




     (14) whether the Securities of the series will be issuable as Registered Securities
(and if so, whether such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.8, the terms upon
which Unregistered Securities of any series may be exchanged for Registered Securities of
such series and vice versa;




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




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



8









 






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




     (18) any other events of default or covenants with respect to the Securities of such
series in addition to the Events of Default or covenants set forth herein; and




     (19) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture). All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officer’s Certificate referred to above or as set forth in any such
indenture supplemental hereto.



     All Securities of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such
Board Resolution, such Officer’s Certificate or in any such indenture supplemental hereto.



     SECTION 2.4 Authentication and Delivery of Securities. The Issuer may deliver Securities of any
series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee
for authentication together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified from time to time
by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of
the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order
may authorize authentication and delivery pursuant to oral instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and 4 below
only at or before the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:




     (1) an Issuer Order requesting such authentication and setting forth delivery
instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from time to time, in
an aggregate principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee
as may be specified from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms of Securities of
such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may authorize authentication



9









 







and delivery
pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed in writing;




     (2) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;




     (3) an Officer’s Certificate setting forth the form or forms and terms of the
Securities and Coupons, if any, stating that the form or forms and terms of the Securities
and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with
this Indenture, and covering such other matters as the Trustee may reasonably request; and




     (4) at the option of the Issuer, either one or more Opinions of Counsel, or a letter
addressed to the Trustee permitting it to rely on one or more Opinions of Counsel,
substantially to the effect that:




     (a) the forms of the Securities and Coupons, if any, have been duly authorized
and established in conformity with the provisions of this Indenture;




     (b) in the case of an underwritten offering, the terms of the Securities have
been duly authorized and established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not underwritten, certain terms
of the Securities have been established pursuant to a Board Resolution, an Officer’s
Certificate or a supplemental indenture in accordance with this Indenture, and when
such other terms as are to be established pursuant to procedures set forth in an
Issuer Order shall have been established, all such terms will have been duly
authorized by the Issuer and will have been established in conformity with the
provisions of this Indenture;




     (c) when the Securities and Coupons, if any, have been executed by the Issuer
and authenticated by the Trustee in accordance with the provisions of this Indenture
and delivered to and duly paid for by the purchasers thereof, they will have been
duly issued under this Indenture, will be entitled to the benefits of
this Indenture, and will be valid and binding obligations of the Issuer,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and (ii) rights of acceleration, if any, and
the availability of equitable remedies may be limited by equitable principles of
general applicability; and




     (d) the execution and delivery by the Issuer of, and the performance by the
Issuer of its obligations under, the Securities and Coupons, if any, will not
contravene any provision of any material applicable law or the certificate of
incorporation or bylaws of the Issuer or any agreement or other instrument binding
upon the Issuer or any of its “significant subsidiaries” (as defined in



10









 







Article 1 of
Regulation S-X under the Securities Act of 1933) that is material to the Issuer and
its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Issuer or any “significant subsidiary” (as defined above), and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Issuer of its
obligations under the Securities and Coupons, if any, except such as are specified
and have been obtained and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the Securities
and Coupons, if any.



     In rendering such opinions, any counsel may qualify any opinions as to enforceability by
stating that such enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and
is subject to general principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law). Such counsel may rely upon opinions of other counsel (copies
of which shall be delivered to the Trustee), who shall be counsel reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes he and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of officers of the Issuer
and its subsidiaries and certificates of public officials.



     The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee’s own rights, duties or immunities under the
Securities, this Indenture or otherwise.



     If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to
be issued in the form of one or more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of all of the
Securities of such series issued and not yet cancelled, (ii) shall be registered in the name
of the Depositary for such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary’s instructions and (iv) shall bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for Securities in definitive registered form,
this Security may not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.”



11









 





     Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.



     SECTION 2.5 Execution of Securities. The Securities and, if applicable, each Coupon appertaining
thereto shall be signed on behalf of the Issuer by its president, any vice president or its
treasurer or controller, under its corporate seal (except in the case of Coupons) which may, but
need not, be attested. Such signatures may be the manual or facsimile signatures of the present or
any future such officers. The seal of the Issuer may be in the form of a facsimile thereof and may
be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly authenticated and delivered by
the Trustee.



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



     SECTION 2.6 Certificate of Authentication. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon shall be entitled
to the benefits of this Indenture or shall be valid and obligatory for any purpose until the
certificate of authentication on the Security to which such Coupon appertains shall have been duly
executed by the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.



     SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The Securities of each
series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established, such Securities
shall be issuable in denominations of $1,000 and $5,000. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the Trustee, as
evidenced by the execution and authentication thereof.



     Each Registered Security shall be dated the date of its authentication. Each Unregistered
Security shall be dated as provided in the resolution or resolutions of the Board of Directors of



12









 







the Issuer referred to in Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as contemplated by
Section 2.3.



     The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date for such series, in which
case such defaulted interest shall be paid to the persons in whose names Outstanding Registered
Securities for such series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to the Holders of
Registered Securities not less than 15 calendar days preceding such subsequent record date. The
term “record date” as used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated by Section 2.3, or,
if no such date is so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such interest payment date is
the fifteenth day of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.



     SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep at each office or agency to
be maintained for the purpose as provided in Section 3.2 for each series of Securities a register
or registers in which, subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Registered Securities of such series and the registration of transfer of
Registered Securities of such series. Such register shall be in written form in the English
language or in any other form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers shall be open for inspection by the Trustee.



     Upon due presentation for registration of transfer of any Registered Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same series, maturity date,
interest rate and original issue date in authorized denominations for a like aggregate principal
amount.



     Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable
by delivery.



     At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged at the



13









 







agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2,
with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series unless (1) otherwise specified pursuant to Section 2.3 and
(2) the Issuer has delivered to the Trustee an Opinion of Counsel that (x) the Issuer has received
from the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in
the applicable Federal income tax law, in either case to the effect that the inclusion of terms
permitting Registered Securities to be exchanged for Unregistered Securities would result in no
adverse Federal income tax effect to the Issuer or to any Holder. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive. All Securities and
Coupons surrendered upon any exchange or transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Trustee and the Trustee will deliver a certificate of disposition
thereof to the Issuer.



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



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



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




14











 





     Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred or exchanged
except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor Depositary for such series or a nominee of such successor
Depositary.



     If at any time the Depositary for any Registered Securities of a series represented by one or
more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor
Depositary eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer’s election pursuant to Section 2.3 that such Registered Securities be represented by one or
more Registered Global Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer’s Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global Security or Securities.



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



     As soon as practicable after the occurrence of an Event of Default with respect to any series
of Registered Securities, the Issuer shall execute, and the Trustee, upon receipt of an Officer’s
Certificate for the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered form without coupons,
in any authorized denominations and in an aggregate principal amount equal to the principal amount
of the Registered Global Security or Securities representing such Registered Securities, in
exchange for such Registered Global Security or Securities.



     If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a
Registered Global Security, the Depositary for such Registered Global Security may surrender such
Registered Global Security in exchange in whole or in part for Securities of the same series in
definitive registered form on such terms as are acceptable to the Issuer and such Depositary.



15









 




Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without
service charge,





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




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



     Upon the exchange of a Registered Global Security for Securities in definitive registered form
without coupons, in authorized denominations, such Registered Global Security shall be cancelled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form
without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such
agent shall deliver such Securities to or as directed by the Persons in whose names such Securities
are so registered.



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



     Notwithstanding anything herein or in the terms of any series of Securities to the contrary,
none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than
the Issuer, shall rely on an Officer’s Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Issuer (such as, for example, the inability of the
Issuer to deduct from its income, as computed for Federal income tax purposes, the interest payable
on the Unregistered Securities) under then applicable United States Federal income tax laws.



     SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security or any Coupon appertaining to any Security
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen, or in
exchange or substitution for the Security to which such mutilated, defaced, destroyed, lost or
stolen Coupon appertained, with



16









 







Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as may be required by them to indemnify and defend and to
save each of them harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the Security and related
Coupons to the Trustee or such agent.



     Upon the issuance of any substitute Security or Coupon, the Issuer may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) or its agent
connected therewith. In case any Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of
the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof.



     Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities and Coupons and shall preclude any and all other rights or remedies notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.



     SECTION 2.10 Cancellation of Securities; Destruction Thereof. All Securities and Coupons surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee or any agent of the Trustee,
shall be delivered to the Trustee or its agent for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or its agent shall
dispose of cancelled Securities and Coupons held by it and deliver a certificate of disposition to
the Issuer. If the Issuer or its agent shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the indebtedness represented
by such Securities or Coupons unless and until the same are delivered to the Trustee or its agent
for cancellation.



17









 





     SECTION 2.11 Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be issuable as Registered Securities without
coupons, or as Unregistered Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution
and authentication thereof. Temporary Securities may contain such references to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such purpose as specified
pursuant to Section 2.3, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of definitive Securities of
the same series having authorized denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive Securities of such
series, unless otherwise established pursuant to Section 2.3. The provisions of this Section are
subject to any restrictions or limitations on the issue and delivery of temporary Unregistered
Securities of any series that may be established pursuant to Section 2.3 (including any provision
that Unregistered Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency located outside the United States
and the procedures pursuant to which definitive or global Unregistered Securities of such series
would be issued in exchange for such temporary global Unregistered Security).



     SECTION 2.12 Computation of Interest. Except as otherwise specified as contemplated by Section 2.3 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.



ARTICLE THREE




COVENANTS OF THE ISSUER 




     SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on, each of the
Securities of such series (together with any additional amounts payable pursuant to the terms of
such Securities) at the place or places, at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender of the several
Coupons for such interest installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest



18









 







thereon may be paid while such Security is
in temporary form, the interest on any such temporary Unregistered Security (together with any
additional amounts payable pursuant to the terms of such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only upon presentation of
such Securities for notation thereon of the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof and, at the option of the Issuer,
may be paid by wire transfer or by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry books of the Issuer.



     SECTION 3.2 Offices for Payments, Etc. So long as any Registered Securities are authorized for issuance pursuant to this Indenture
or are outstanding hereunder, the Issuer will maintain in the Place of Payment an office or agency
where the Registered Securities of each series may be presented for payment, where the Securities
of each series may be presented for exchange as is provided in this Indenture and, if applicable,
pursuant to Section 2.3 and where the Registered Securities of each series may be presented for
registration of transfer as in this Indenture provided.



     If provided for pursuant to Section 2.3, the Issuer will maintain one or more offices or
agencies in a city or cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on which the Securities
of such series are listed) as a Place of Payment where the Unregistered Securities, if any, of each
series and Coupons, if any, appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such Unregistered Security or
Coupon at an agency of the Issuer within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made without adverse tax
consequences to the Issuer. Notwithstanding the foregoing, payments in Dollars of Unregistered
Securities of any series and Coupons appertaining thereto which are payable in Dollars may be made
at an agency of the Issuer maintained in a Place of Payment within the United States if such
payment in Dollars at each agency maintained by the Issuer outside the United States for payment on
such Unregistered Securities is illegal or effectively precluded by exchange controls or other
similar restrictions.



     The Issuer will maintain in the Borough of Manhattan, The City of New York, Places of Payment
or at such other place or places as provided pursuant to Section 2.3, an office or agency where
notices and demands to or upon the Issuer in respect of the Securities of any series, the Coupons
appertaining thereto or this Indenture may be served.



     The Issuer will give to the Trustee prompt written notice of the location of each such office
or agency and of any change of location thereof. In case the Issuer shall fail to maintain any
agency required by this Section to be located in the Places of Payment, or shall fail to give such
notice of the location or of any change in the location of any of the above agencies,
presentations, surrenders, notices and demands may be made and notices may be served at the



19









 







Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.



     The Issuer may from time to time designate one or more additional offices or agencies where
the Securities of a series and any Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer of its obligation to
maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt
written notice of any such designation or rescission thereof.



     SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.



     SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Issuer or the Trustee with
respect to the Securities of any series, it will cause such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,




     (a) that it will hold all sums received by it as such agent for the payment of the
principal of or interest on the Securities of such series (whether such sums have been paid
to it by the Issuer or by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series, or Coupons appertaining
thereto, if any, or of the Trustee, until such sums shall be paid or otherwise disposed of
as provided herein,




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




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



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



     If the Issuer shall act as its own paying agent with respect to the Securities of any series,
it will, on or before each due date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of
such series or the Coupons appertaining thereto a sum sufficient to pay such principal or interest
so



20









 







becoming due. The Issuer will promptly notify the Trustee of its action or any failure to take
such action.



     Anything in this Section to the contrary notwithstanding, but subject to Section 10.1, the
Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



     Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Sections 10.3 and 10.4.



     SECTION 3.5 Written Statement to Trustee. The Issuer will furnish to the Trustee within 120 days after the end of each year that the
Securities are outstanding a brief certificate (which need not comply with Section 11.5) from the
principal executive, financial or accounting officer of the Issuer stating whether or not to the
best knowledge of the signers thereof the Issuer is in default in the performance of all conditions
and covenants under this Indenture.



     SECTION 3.6 Corporate Existence. Subject to Article Nine, the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the rights (charter and
statutory) and franchises of the Issuer and its Subsidiaries; provided, however, that the Issuer
shall not be required to preserve any such right or franchise, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of the business of
the Issuer and its Subsidiaries taken as a whole and the loss thereof is not disadvantageous in any
material respect to the Securityholders.



     SECTION 3.7 Maintenance of Properties. The Issuer will cause all material properties used in or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good condition, repair,
and working order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Issuer may be necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all time except to the extent that the Issuer may be
prevented from so doing by circumstances beyond its control; provided, however, that nothing in
this Section shall prevent the Issuer from discontinuing, or from causing or permitting a
Subsidiary to discontinue, the operation or maintenance of any of such properties, or disposing of
any of them, if such discontinuance or disposal is, in the judgment of the Issuer, desirable in the
conduct of the business of the Issuer or any Subsidiary and not disadvantageous in any material
respect to the Securityholders.



     SECTION 3.8 Payment of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent: (a) all taxes, assessments and governmental charges levied or imposed upon the
Issuer or any Subsidiary or upon the income, profits or property of the Issuer or any Subsidiary
that are material to the Issuer and its Subsidiaries taken as a whole; and (b) all lawful claims
for labor, materials, and supplies, which, if unpaid, might by law become a lien upon the property
of the Issuer or any Subsidiary and that are material to the Issuer and its Subsidiaries taken as a
whole; provided, however, that



21









 







the Issuer 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; and provided further that the
Issuer shall not be required to cause to be paid or discharged any such tax, assessment, charge or
claim if the Issuer shall determine that such payment is not advantageous to the conduct of the
business of the Issuer and its Subsidiaries taken as a whole and that the failure so to pay or
discharge is not disadvantageous in any material respect to the Securityholders.



     SECTION 3.9 Restriction on Liens. So long as any Securities are Outstanding, the Issuer shall not create, incur, issue, or
assume any Indebtedness (as defined below) secured after the date hereof by any security interest
(including, without limitation, any mortgage, pledge, encumbrance, lien or charge of any kind) on
any property of the Issuer (including, without limitation, property of the Issuer consisting of any
share or shares of capital stock or indebtedness owed to the Issuer by any subsidiary of the
Issuer) whether such property, shares or indebtedness are owned by the Issuer at the date of this
Indenture or thereafter acquired, without effectively providing concurrently with the creation,
incurrence, issuance or assumption of such Indebtedness or the time when such Indebtedness is
permitted or suffered to exist that the Securities (together with, if the Issuer shall so
determine, any other indebtedness of the Issuer ranking equally with the Securities and then
existing or thereafter created) shall be secured equally and ratably with (or prior to) the
Indebtedness so created, incurred, issued or assumed; provided, however, that the foregoing shall
not apply to:




     (a) security interests on any property acquired, constructed or improved by the Issuer
or on any shares of capital stock or indebtedness of any subsidiary acquired by the Issuer
after the date of this Indenture to secure the payment of all or any part of the purchase
price of such property, shares of capital stock or indebtedness upon the
acquisition thereof by the Issuer or within 270 days thereafter, or to secure payment
of all or any part of the cost of such construction or improvements as they are incurred or
within 270 days thereafter, and provided that, in the case of any such acquisition,
construction or improvement, such security interest does not apply to any property or shares
of capital stock or indebtedness theretofore owned by the Issuer, other than, in the case of
any such construction or improvement, any real property on which the property is so
constructed or the improvement is located;




     (b) security interests on any property, shares of capital stock, or indebtedness which
security interests exist at the time of acquisition of such property, shares or indebtedness
by the Issuer;




     (c) security interests on any property of a corporation or other Person, which
interests exist at the time such corporation is merged with or into or consolidated with the
Issuer or which interests exist at the time of a sale or transfer of the properties of such
corporation or other Person as an entirety or substantially as an entirety to the Issuer;




     (d) security interest in favor of the United States of America or any State thereof, or
of any department, agency or instrumentality or political subdivision of the United States
of America or any State thereof, or in favor of any other country or political subdivision,
(A) to secure partial progress, advance or other payments pursuant to any



22









 







contract or
statute, (B) to secure any indebtedness incurred or guaranteed for the purpose of financing
or refinancing all or any part of the purchase price of the property, shares of capital
stock or indebtedness subject to such security interests, or (C) to secure the cost of
constructing or improving the property subject to such security interests (including,
without limitation, security interests incurred in connection with pollution control,
industrial revenue or similar financings);




     (e) security interests on any property arising in connection with any defeasance,
covenant defeasance or in substance defeasance of any Indebtedness pursuant to express
contractual provision with respect thereto or generally accepted accounting principles;




     (f) security interests on any capital stock of any corporation which is registered in
the name of the Issuer or otherwise owned by or held for the benefit of the Issuer which may
constitute “margin stock” as such term is defined in Section 207.2(i) of Title 12 of the
Code of Federal Regulations (or any successor provisions); and




     (g) any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any security interest referred to in the foregoing
clauses (a) through (f), inclusive; provided, however, that the principal amount of
Indebtedness secured thereby shall not exceed the original principal amount of Indebtedness
and that such extension, renewal or replacement shall be limited to all or a part of the
property (plus improvements and construction on such property), shares of capital stock or
indebtedness which was subject to the security interest so extended, renewed or replaced.



     Notwithstanding the foregoing provisions of this Section, the Issuer may, without equally and
ratably securing the Securities, create, incur, issue or assume, Indebtedness secured by any
security interest not excepted by the foregoing Clauses (a) through (g), if the aggregate amount of
such Indebtedness, together with all other Indebtedness of the Issuer existing at such time and
secured by security interests not so excepted, does not exceed 10% of the Issuer’s Consolidated Net
Assets at such time.



     For the purposes of this Section only, “Indebtedness” shall mean (i) any indebtedness, whether
or not represented by bonds, debentures, notes or other securities, for the repayment of money
borrowed, (ii) all deferred indebtedness (including, without limitation, capitalized leases) for
the payment of the purchase price of property or assets purchased, and (iii) all guarantees,
endorsements, assumptions or other contingent obligations in respect of, or to purchase or
otherwise to acquire, indebtedness of the types described in clauses (i) and (ii) above.



ARTICLE FOUR




SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE 




     SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders. If and so long as the Trustee shall not be the Security registrar for the Securities of any
series, the Issuer and any other obligor on the Securities will furnish or cause to



23









 







be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semi-annually not more than 5 days after each record date for the payment
of interest on such Registered Securities, as hereinabove specified, as of such record date and on
dates to be determined pursuant to Section 2.3 for non- interest bearing Registered Securities in
each year, and (b) at such other times as the Trustee may request in writing, within thirty days
after receipt by the Issuer of any such request as of a date not more than 15 days prior to the
time such information is furnished.



     SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses the Holders contained in the most recent list furnished to the Trustee as
provided in Section 4.1 and the names and addresses of Holders received by the Trustee in its
capacity, if any, as Security registrar. The Trustee may destroy any list furnished to it as
provided in Section 4.1 upon receipt of a new list so furnished.




     (b) If three or more Holders (herein referred to as “applicants”) apply in writing to
the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned
a Security for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either




     (i) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 4.2(a), or




     (ii) inform such applicants as to the approximate number of Holders whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 4.2(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such
application.



     If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Holder whose name and
address appear in the information preserved at the time by the Trustee in accordance with Section
4.2(a) copies of the form of proxy or other communication which is specified in the request, with
reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, of
the reasonable expenses of such mailing, unless within five days after such tender, the Trustee
shall mail to such applicants, and file with the Commission together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interests of the Holders or would be a violation of applicable law.
Such statement shall specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections, or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after



24









 







notice and opportunity for hearing, that
all objections so sustained have been met, and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.




     (c) Every Holder of Securities, by receiving and holding the same, agrees with the
Issuer and the Trustee that neither the Issuer nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 4.2(b), 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 Section
4.2(b).



     SECTION 4.3 Reports by the Issuer. The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 or pursuant to Section 314 of
the Trust Indenture Act of 1939.



     SECTION 4.4 Reports by the Trustee. Any Trustee’s report required under Section 313(a) of the Trust Indenture Act of 1939 shall
be transmitted on or before September 15 in each year beginning September 15, ___, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities are Outstanding
hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 days prior
thereto. A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which the Securities are listed, with the Commission and
with the Issuer. The Issuer will notify the Trustee when any Securities are listed on any stock
exchange.



ARTICLE FIVE




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT 




     SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default. “Event of Default” with respect to Securities of any series wherever used herein, means
each one of the following events which shall have occurred and be continuing (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):




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




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



25









 






     (c) default in the payment of any sinking fund installment as and when the same shall
become due and payable by the terms of the Securities of such series, and continuance of
such default for a period of three business days; or




     (d) failure on the part of the Issuer duly to observe or perform any other of the
covenants or agreements on the part of the Issuer in the Securities of such series (other
than a covenant or agreement in respect of the Securities of such series a default in the
performance or breach of which is elsewhere in this Section specifically dealt with) or
contained in this Indenture (other than a covenant or agreement included in this Indenture
solely for the benefit of a series of Securities other than such series) for a period of 60
days after the date on which written notice specifying such failure, stating that such
notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same,
shall have been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 25% in
aggregate principal amount of the Outstanding Securities of all series affected thereby; or




     (e) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Issuer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer
for any substantial part of its or their property or ordering the winding up or liquidation
of its or their affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or




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




     (g) an event of default, as defined in any one or more mortgages, indentures,
instruments, bonds, debentures, notes or other similar instruments under which there may be
issued, or by which there may be secured or evidenced, any indebtedness (other than the
Securities of such series or nonrecourse obligations) (“Indebtedness”) in excess in
aggregate principal amount of $10,000,000 for money borrowed by the Issuer shall occur, if
such event of default shall result in the acceleration of such Indebtedness prior to its
expressed maturity under the terms of the instrument under which the indebtedness is issued
or secured unless such Indebtedness is discharged or such acceleration is cured, waived,
rescinded or annulled within 20 days after written notice thereof shall have been given by
registered or certified mail, return receipt requested, to the Issuer by the Trustee or to
the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities (treated as one class) which notice shall state that it is a
“Notice of Default” hereunder; or



26









 






     (h) any other Event of Default provided in the supplemental indenture under which such
series of Securities is issued or in the form of Security for such series;


provided that if any such default or acceleration referred to in clause (g) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon cured.




     If an Event of Default described in clause (a), (b), (c), (d) or (h) (if the Event of Default
under clause (d) or (h), as the case may be, is with respect to such series of Securities and to
less than all series of Securities then Outstanding) occurs and is continuing, then, and in each
and every such case, except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of each such affected series then Outstanding hereunder (voting
as a single class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any such affected
series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration,
the same shall become immediately due and payable. If an Event of Default described in clause (d)
or (h) (if the Event of Default under clause (d) or (h), as the case may be, is with respect to all
series of Securities then Outstanding), (e) or (f) occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of
all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding, and interest accrued
thereon, if any, to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.



     The foregoing provisions, however, are subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of each such series (or
of all the Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in
the Securities of each such series (or at the respective rates of interest or Yields to Maturity of
all the Securities, as the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad
faith,



27









 







and if any and all Events of Default under the Indenture, other than the nonpayment of the
principal of Securities which shall have become due by acceleration, shall have been cured, waived
or otherwise remedied as provided herein — then and in every such case the Holders of a majority
in aggregate principal amount of all the Securities of each such series, or of all the Securities,
in each case voting as a single class, then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.



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



     SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Securities of any series when such interest shall have become
due and payable, and such default shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the principal of any of the Securities
of any series when the same shall have become due and payable, whether upon maturity of the
Securities of such series or upon any redemption or by declaration or otherwise - then upon
demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the
Securities of such series the whole amount that then shall have become due and payable on all
Securities of such series, and such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith.



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



     In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may



28









 







enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities and collect in the
manner provided by law out of the property of the Issuer or other obligor upon the Securities,
wherever situated the moneys adjudged or decreed to be payable.



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




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




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




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



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



29









 







Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.



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



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



     SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall
be applied in the following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such
series in reduced principal amounts in exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:




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




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




     THIRD: In case the principal of the Securities of such series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such



30









 







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




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



     SECTION 5.4 Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.



     SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had
been taken.



     SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any Security of any series or of any Coupon appertaining thereto shall have
any right by virtue or by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, against the Issuer unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate principal amount of the
Securities of each affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written request shall have been
given to the Trustee pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other taker



31









 







and Holder
and the Trustee, that no one or more Holders of Securities of any series or Coupons appertaining to
such Securities shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all Holders of Securities
of the applicable series and Coupons appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.



     SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security,
the right of any Holder of any Security or Coupon to receive payment of the principal of and
interest on such Security or Coupon on or after the respective due dates expressed in such Security
or Coupon, or to institute suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.



     SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 5.6, 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.



     No delay or omission of the Trustee or of any Holder of Securities or Coupons to exercise any
right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such Event of Default or
an acquiescence therein; and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of Securities or Coupons may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons.



     SECTION 5.9 Control by Holders of Securities. The Holders of a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture and provided further that (subject
to the provisions of Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors,
the executive committee, or a trust committee of directors or Responsible Officers of the Trustee
shall determine that the action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good



32









 







faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the giving of said direction, it being
understood that (subject to Section 6.1) the Trustee shall have no duty to ascertain whether or not
such actions or forbearances are unduly prejudicial to such Holders.



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



     SECTION 5.10 Waiver of Past Defaults. Prior to the acceleration of the maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all series at the time
Outstanding with respect to which an Event of Default shall have occurred and be continuing (voting
as a single class) may on behalf of the Holders of all such Securities waive any past default or
Event of Default described in Section 5.1 and its consequences, except a default in respect of a
covenant or provision hereof which cannot be modified or amended without the consent of the Holder
of each Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders
of all such Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.



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



     SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall, within ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with respect to that series known to the
Trustee (i) if any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York and in an Authorized Newspaper in the Place or Places of Payment (and, if
required, in an Authorized Newspaper any other place or places) and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act of 1939, unless in each case such defaults shall have been cured before the mailing
or publication of such notice (the term “defaults” for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the payment of any sinking
or purchase fund installment on such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such series.



     SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or Coupon by his
acceptance



33









 







thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the Securities of such
series, or, in the case of any suit relating to or arising under clause (d) or (h) of Section 5.1
(if the suit relates to Securities of more than one but less than all series), 10% in aggregate
principal amount of Securities then Outstanding and affected thereby, or in the case of any suit
relating to or arising under clause (d) or (h) (if the suit under clause (d) or (h) relates to all
the Securities then Outstanding), (e), (f) or (g) of Section 5.1, 10% in aggregate principal amount
of all Securities then Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.



ARTICLE SIX




CONCERNING THE TRUSTEE 




     SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee,
prior to the occurrence of an Event of Default with respect to the Securities of a particular
series and after the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. In case an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such
series of Securities such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.



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




     (a) prior to the occurrence of an Event of Default with respect to the Securities of
any series and after the curing or waiving of all such Events of Default with respect to
such series which may have occurred: (i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and (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 statements, certificates or opinions furnished to the Trustee



34









 







and substantially
conforming to the requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they substantially conform to the requirements of this
Indenture;




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




     (c) 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 pursuant to
Section 5.9 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.



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



     The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the
Trust Indenture Act of 1939.



     SECTION 6.2 Certain Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section
6.1:




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




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




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




     (d) the Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such Securityholders



35









 







shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;




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




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




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



     SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Securities or of the proceeds
thereof.



     SECTION 6.4 Trustee and Agents May Hold Securities or Coupons; Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities or Coupons with the same rights it would
have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.



     SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section 10.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by mandatory
provisions of law. Neither the Trustee nor any



36









 







agent of the Issuer or the Trustee shall be under
any liability for interest on any moneys received by it hereunder.



     SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees
to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any
of the provisions of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of this Indenture or
the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim.



     SECTION 6.7 Right of Trustee to Rely on Officer’s Certificate, Etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof.



     SECTION 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee. The following indentures are hereby specifically described for the purposes of Section
310(b)(1) of the Trust Indenture Act of 1939; this Indenture with respect to the Securities of any
other series.



     SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal, State or District of Columbia authority. Such
corporation or banking association shall have a place of business in the Borough of Manhattan, the
City and State of New York and the



37









 







Place or Places of Payment if there be such a corporation in
such locations willing to act upon reasonable and customary terms and conditions. If such
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this
Section, 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. In case at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject to Section 310(a) of the Trust
Indenture Act of 1939.



     SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign
with respect to one or more or all series of Securities by giving written notice of resignation to
the Issuer and (i) if any Unregistered Securities of a series affected are then Outstanding, by
giving notice of such resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Place or Places of Payment (and, if required, in an Authorized
Newspaper in any other place or places), (ii) if any Unregistered Securities of a series affected
are then Outstanding, by mailing notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act
of 1939 at such addresses as were so furnished to the Trustee and (iii) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.



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





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




     (ii) the Trustee shall cease to be eligible in accordance with the provisions
of Section 6.9 and Section 310(a) of the Trust Indenture Act of 1939 and shall fail
to resign after written request therefor by the Issuer or by any Securityholder; or



38









 






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


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




          (c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time outstanding may at any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the Securityholders.




          (d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.




     SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute and deliver to
the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all rights, powers, duties and obligations with respect to
such series of its predecessor hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to
Section 10.4, pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.



39









 





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



     No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions
of Section 6.9.



     Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Issuer shall give notice thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Place or Places of Payment (and, if required, in an Authorized Newspaper in any
other place or places), (b) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to the Holders of Registered
Securities of each series affected, by mailing such notice to such Holders at their addresses as
they shall appear on the registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to give such notice within
ten days after acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be given at the expense of the Issuer.



     SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee. Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.9, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the



40









 







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



     SECTION 6.13 Preferential Collection of Claims Against Issuer. (a) Subject to Section 6.13(b), if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Issuer of the Securities within three months
prior to a default, as defined in Section 6.13(c), or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a special account
for the benefit of the Trustee individually and the Holders of the Securities and the holders of
other indenture securities, as defined in Section 6.13(c):




     (1) an amount equal to any and all reductions in the amount due and owing upon any
claim as such creditor in respect of principal or interest, effected after the beginning of
such three months’ period and valid as against the Issuer and their other creditors, except
any such reduction resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by or against the
Issuer upon the date of such default; and




     (2) all property received by the Trustee in respect of any claims as such creditor,
either as security therefor, or in satisfaction or composition thereof, or otherwise, after
the beginning of such three months’ period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the Issuer and their
other creditors in such property or such proceeds.




Nothing herein contained, however, shall affect the right of the Trustee:




     (A) to retain for its own account (i) payments made on account of any such
claim by any Person (other than the Issuer) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a third Person,
and (iii) distributions made in cash, securities or other property in respect of
claims filed against the Issuer in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable State law;




     (B) to realize, for its own account, upon any property held by it as security
for any such claim, if such property was so held prior to the beginning of such
three months’ period;




     (C) to realize, for its own account, but only to the extent of the claim
hereinafter mentioned, upon any property held by it as security for any such claim,
if such claim was created after the beginning of such three months’ period and such
property was received as security therefor simultaneously with the



41









 







creation thereof,
and if the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe that a
default, as defined in Section 6.13(c), would occur within three months; or




     (D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as provided in
paragraph (B) or (C), as the case may be, to the extent of the fair value of such
property.




For the purposes of paragraphs (B), (C) and (D), property substituted after the
beginning of such three months’ period for property held as security at the time of
such substitution shall, to the extent of the fair value of the property released,
have the same status as the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal of or in substitution
for or for the purpose of repaying or refunding any pre-existing claim of the
Trustee as such creditor, such claim shall have the same status as such pre-existing
claim.



     If the Trustee shall be required to account, the funds and property held in such special
account and the proceeds thereof shall be apportioned among the Trustee, the Holders and the
holders of other indenture securities in such manner that the Trustee, the Holders and the holders
of other indenture securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, the
same percentage of their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Issuer of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph, with respect to any
claim, the term “dividends” shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Act
or applicable State law, whether such distribution is made in cash, securities or other property,
but shall not include any such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion among the Trustee, the
Holders and the holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to the Trustee and the
Holders and the holders of other indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the value of any securities or
other property held in such special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a mathematical formula.



42









 





     Any Trustee which has resigned or been removed after the beginning of such three months’
period shall be subject to the provisions of this Subsection as though such resignation or removal
had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three
months’ period, it shall be subject to the provisions of this Subsection if and only if the
following conditions exist:




     (i) the receipt of property or reduction of claim, which would have given rise to the
obligation to account, if such Trustee had continued as Trustee, occurred after the
beginning of such three months’ period; and




     (ii) such receipt of property or reduction of claim occurred within three months after
such resignation or removal.



     In any case commenced under the Bankruptcy Act of July 1, 1898, or any amendment thereto
enacted prior to November 6, 1978, all references to periods of three months contained in this
Section 6.13(a) shall be deemed to be references to periods of four months.




     (b) There shall be excluded from the operation of Subsection (a) of this Section 6.13 a
creditor relationship arising from:




     (1) the ownership or acquisition of securities issued under any indenture, or
any security or securities having a maturity of one year or more at the time of
acquisition by the Trustee;




     (2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction or by this Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of such advances and
of the circumstances surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;




     (3) disbursements made in the ordinary course of business in the capacity of
trustee under an indenture, transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;




     (4) an indebtedness’ created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold in a cash
transaction, as defined in Subsection (c) of this Section 6.13;




     (5) the ownership of stock or of other securities of a corporation organized
under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which
is directly or indirectly a creditor of the Issuer; and




     (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills
of exchange, acceptances or obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this Section 6.13.




     (c) For the purposes of this Section 6.13 only:



43









 






     (1) the term “default” means any failure to make payment in full of the
principal of or interest on any of the Securities or upon the other indenture
securities when and as such principal or interest becomes due and payable;




     (2) the term “other indenture securities” means securities upon which the
Issuer is an obligor outstanding under any other indenture (i) under which the
Trustee is also trustee, (ii) which is qualified under the Trust Indenture Act of
1939, (iii) which contains provisions substantially similar to the provisions of
this Section 6.13, and (iv) under which a default exists at the time of the
apportionment of the funds and property held in such special account;




     (3) the term “cash transaction” means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon banks or bankers and
payable upon demand;




     (4) the term “self-liquidating paper” means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the Issuer
for the purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or merchandise
or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the creditor relationship with
the Issuer arising from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation;




     (5) the term “Issuer” means the Issuer and any other obligor upon the
Securities; and




     (6) the term “Federal Bankruptcy Act” means the Bankruptcy Act or Title 11 of
the United States Code.



     SECTION 6.14 Appointment of Authenticating Agent. As long as any Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent (the “Authenticating
Agent”) which shall be authorized to act on behalf of the Trustee to authenticate Securities,
including Securities issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such Authenticating Agent shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to 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 for such series and a Certificate of Authentication executed
on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times
be a corporation organized and doing business under the laws of the United States of America or of
any State, authorized under such laws to exercise corporate trust powers, having a combined



44









 







capital
and surplus of at least $5,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal or State authority.



     Any corporation into which any 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 any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer.



     Upon receiving such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14 with respect to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the extent provided in
Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation. The Authenticating
Agent for the Securities of any series shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee.



     Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.



ARTICLE SEVEN




CONCERNING THE SECURITYHOLDERS 




     SECTION 7.1 Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of
the Securityholders of any or all series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage of Securityholders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this Article.



     SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or his
agent or proxy may be proved in the following manner:




     (a) The fact and date of the execution by any Holder of any instrument may be proved by
the certificate of any notary public or other officer of any jurisdiction



45









 







authorized to take
acknowledgments of deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the same. The fact
of the holding by any Holder of an Unregistered Security of any series, and the identifying
number of such Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust company, bank, banker
or recognized securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall
be dated and shall state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered Securities of one or more
series specified therein. The holding by the person named in any such certificate of any
Unregistered Securities of any series specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any determination
of such holding (1) another certificate bearing a later date issued in respect of the same
Securities shall be produced, or (2) the Security of such series specified in such
certificate shall be produced by some other person, or (3) the Security of such series
specified in such certificate shall have ceased to be Outstanding. Subject to Sections 6.1
and 6.2, the fact and date of the execution of any such instrument and the amount and
numbers of Securities of any series held by the person so executing such instrument and the
amount and numbers of any Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be prescribed by the Trustee
for such series or in any other manner which the Trustee for such series may deem
sufficient.




     (b) In the case of Registered Securities, the ownership of such Securities shall be
proved by the Security register or by a certificate of the Security registrar.



     The Issuer may set a record date for purposes of determining the identity of Holders of
Registered Securities of any series entitled to vote or consent to any action referred to in
Section 7.1, which record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60
days nor less than five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Registered Securities of any series,
only Holders of Registered Securities of such series of record on such record date shall be
entitled to so vote or give such consent or revoke such vote or consent.



     SECTION 7.3 Holders to Be Treated as Owners. The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of this Indenture,
interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be



46









 







affected by any notice to the contrary. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may treat the Holder of any Unregistered
Security and the Holder of any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the Issuer, the
Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Unregistered Security or Coupon.



     SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction, consent or waiver
under this Indenture, Securities which are owned by the Issuer or any other obligor on the
Securities with respect to which such determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer
or any other obligor on the Securities with respect to which such determination is being made shall
be disregarded and deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Issuer or any other obligor
upon the Securities or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the account
of any of the above- described persons; and, subject to Sections 6.1 and 6.2, the Trustee
shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.



     SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action, any Holder of a Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid
any such action taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of whether
or not any notation in regard thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of any or all series, as
the case



47









 







may be, specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.



ARTICLE EIGHT




SUPPLEMENTAL INDENTURES 




     SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The Issuer, when authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may
from time to time and at any time enter into an indenture or indentures supplemental hereto for one
or more of the following purposes:




     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;




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




     (c) to add to the covenants of the Issuer such further covenants, restrictions,
conditions or provisions as the Issuer and the Trustee shall consider to be for the
protection of the Holders of Securities or Coupons, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the right of the Holders
of a majority in aggregate principal amount of the Securities of such series to waive such
an Event of Default;




     (d) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to make any other provisions
as the Issuer may deem necessary or desirable, provided that no such action shall adversely
affect the interests of the Holders of the Securities or Coupons;




     (e) to establish the forms or terms of Securities of any series or of the Coupons
appertaining to such Securities as permitted by Sections 2.1 and 2.3; and




     (f) 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



48









 







facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the
requirements of Section 6.11.



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



     Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 8.2.



     SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Article Seven) of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding of all series
affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of
each such series or of the Coupons appertaining to such Securities; provided, that no such
supplemental indenture shall (a) extend the final maturity of any Security,
or reduce the principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or make the principal thereof
(including any amount in respect of original issue discount), or interest thereon payable in any
coin or currency other than that provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.1 or
the amount thereof provable in bankruptcy pursuant to Section 5.2, or alter the provisions of
Section 11.11 or 11.12 or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of repayment at the option of
the Securityholder, in each case without the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of the Holders of each
Security so affected.



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



49









 





     Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.



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



     Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Place
or Places of Payment (and, if required, in an Authorized Newspaper in any other place or places),
and in each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to give such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.



     SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.



     SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of this Indenture.



     SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a notation in form
approved by the Trustee for



50









 







such series as to any matter provided for by such supplemental
indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.



ARTICLE NINE




CONSOLIDATION, MERGER, SALE OR CONVEYANCE 




     SECTION 9.1 Issuer May Consolidate, Etc., Only on Certain Terms. So long as any securities are Outstanding, the Issuer shall not consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Issuer shall not permit any other Person to consolidate with or
merge into the Issuer or convey, transfer or lease its properties and assets substantially as an
entirety to the Issuer, unless:




     (a) in case the Issuer shall consolidate with or merge into another corporation or
convey, transfer or lease its properties and assets substantially as an entirety to any
Person, the corporation formed by such consolidation or into which the Issuer is merged or
the Person which acquires by conveyance or transfer, or which leases, the properties
and assets of the Issuer substantially as an entirety shall be a corporation organized
and existing in corporate form under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and 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
Issuer to be performed or observed;




     (b) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Issuer or a Subsidiary as a result of such transaction as
having been incurred by the Issuer or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;




     (c) if, as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Issuer would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be permitted by this Indenture, the
Issuer or such successor corporation or Person, as the case may be, shall take such steps as
shall be necessary effectively to secure the Securities equally and ratably with (or prior
to) all indebtedness secured thereby; and




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



51









 





     SECTION 9.2 Successor Corporation Substituted. The successor corporation formed by such consolidation or into which the Issuer is merged
or to which such transfer or lease is made shall succeed to and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same effect as if such
successor corporation had been named as the Issuer herein, and thereafter (except in the case of a
lease to another Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.



     SECTION 9.3 Restrictions on Dispositions of HECO Shares. As long as any Securities are Outstanding, the Issuer will not sell, transfer or otherwise
dispose of, or permit Hawaiian Electric Company, Inc. (“HECO”) to issue, sell, transfer or
otherwise dispose of, other than to the Issuer or to a direct or indirect wholly-owned Subsidiary,
Voting Shares of the Issuer; provided, however, that this covenant shall not restrict (i) sales,
transfers or other dispositions by HECO of any securities, including capital stock, of its
subsidiaries, (ii) consolidations or mergers of HECO with or into the Issuer or any of its direct
or indirect wholly-owned Subsidiaries, or (iii) consolidations or mergers of HECO with or into any
other corporation if the corporation formed by such consolidation or merger is a direct or
indirect wholly-owned Subsidiary.



ARTICLE TEN




SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS 




     SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any time (a) the Issuer shall have paid or caused to be paid the principal of
and interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and Coupons appertaining thereto which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
2.9) as and when the same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all Securities of any series theretofore authenticated and all
unmatured Coupons appertaining thereto (other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) or (c) in the case of any series of Securities where
the exact amount (including the currency of payment) of principal of and interest due on which can
be determined at the time of making the deposit referred to in clause (ii) below, (i) all the
Securities of such series and all unmatured Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the
Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds
the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 10.4) or, in the case of any series of Securities the payments on
which may only be made in Dollars, direct obligations of the United States of America, backed by
its full faith and



52









 







credit (“U.S. Government Obligations”), maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash, or a combination thereof,
sufficient in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal of
(and premium, if any,) and interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal, premium or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series; and if, in any such
case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer,
then this Indenture shall cease to be of further effect (except as to (i) rights of registration of
transfer and exchange of Securities of such Series and of Coupons appertaining thereto and the
Issuer’s right of optional redemption, if any, (ii) substitution of temporary, mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the rights of the Holders
of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of them, and (vi) the
obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities exchange upon which
the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.



          (B) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officer’s Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts (including the
currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of such series and
Coupons appertaining
thereto shall no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and of Coupons appertaining thereto and the Issuer’s right of
optional redemption, if any, (ii) substitution of temporary, mutilated, defaced, destroyed, lost or
stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons appertaining
thereto to receive payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of the Holders of Securities of such series and



53









 






Coupons
appertaining thereto as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the Issuer under Section 3.2) and
the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper
instruments acknowledging the same, if





     (a) with reference to this provision the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of (and premium on,
if any) and interest on all Securities of such series
and Coupons appertaining thereto on each date that such principal, premium or interest
is due and payable and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series;




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




     (c) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such opinion shall confirm
that, the Holders of the Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;




     (d) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with; and




     (e) not Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to the Securities of such series shall have occurred
and be continuing on the date of such deposit or, insofar as Sections 5.1(e) and (f) 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).



          (C) The Issuer shall be released from its obligations under Sections 3.6, 3.7, 3.8, 3.9, 9.1
and 9.3 with respect to the Securities of any series, and any Coupons appertaining



54









 






thereto,
Outstanding on and after the date the conditions set forth below are satisfied (hereinafter,
“covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of any series, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such Section or by reason of
any reference in such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 5.1, but the remainder of
this Indenture and such Securities and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection C of this Section 10.1:





     (a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the holders of the Securities of
such series and coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payments on which may only be made in
Dollars, U.S. Government Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal of (and premium, if any) and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal of, premium on or interest is
due and payable and (B) any mandatory sinking fund payments on the day on which such
payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series;




     (b) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 5.1(e) and (f) 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);




     (c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest
as defined in Section 6.8 and for purposes of the Trust Indenture Act of 1939 with respect
to any securities of the Issuer;




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




     (e) Such covenant defeasance shall not cause any Securities then listed on any
registered national securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;




     (f) The Issuer shall have delivered to the Trustee an Officer’s Certificate and Opinion
of Counsel to the effect that the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for Federal income



55









 







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; and




     (g) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.



     SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 10.4, all moneys deposited with the Trustee (or other trustee) pursuant
to Section 10.1 shall be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be segregated from
other funds except to the extent required by law.



     SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to
it or paid to the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.



     SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series or Coupons attached thereto and not applied
but remaining unclaimed for two years after the date upon which such principal or interest shall
have become due and payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the
Securities of such series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter
look only to the Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer, mail by first-class mail to Holders
of such Securities at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the Issuer cause to be
published once in an Authorized Newspaper in the Place or Places of Payment (and if required, once
in an Authorized Newspaper in any other place or places), notice, that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from the date of such
mailing or publication, any unclaimed balance of such money then remaining will be repaid to the
Issuer.



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     SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 10.1 or the
principal or interest received in respect of such obligations.



ARTICLE ELEVEN




MISCELLANEOUS PROVISIONS 




     SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities and the Coupons appertaining thereto by the
Holders thereof and as part of the consideration for the issue of the Securities and the Coupons
appertaining thereto.



     SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities and Coupons. Nothing in this Indenture, in the Securities or in the Coupons appertaining thereto,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Securities or Coupons, if any,
any legal or equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities or Coupons, if any.



     SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. The Issuer shall have the right at all times to assign any of its rights and obligations
under this Indenture to a direct or indirect wholly-owned Subsidiary, provided that, in the event
of any such assignment, the Issuer will remain liable for all such obligations. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer
shall bind its successors and assigns, whether so expressed or not.



     SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities and
Coupons. Any notice or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the Holders of Securities or Coupons to or on the Issuer
may be given or served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to Hawaiian Electric Industries, Inc. 900 Richards Street, Honolulu, Hawaii
96813, Attention: Treasurer. Any notice, direction, request or demand by the Issuer or any Holder
of Securities or Coupons to or upon the Trustee shall be deemed to have been sufficiently given or
served by being deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Trustee is filed by the Trustee with the
Issuer) to U.S. Bank National Association, 100 Wall Street, Suite 1600, New



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York, New York 10005,
Attention: Corporate Trust Services/Wendy Kumar, Vice President. Where this Indenture provides for
notice to Holders of Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Security register. In any case
where notice to such Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.



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



     SECTION 11.5 Officer’s Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any of
the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate
stating that all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



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



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



58









 







certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.



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



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



     SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of any such Security or
Coupon shall not be a Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.



     SECTION 11.7 Conflict of any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or with another provision (an “incorporated provision”) included in
this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939,
such imposed duties or incorporated provision shall control.



     SECTION 11.8 New York Law to Govern. This Indenture and each Security and Coupon shall be deemed to be a contract under the laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.



     SECTION 11.9 Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.



     SECTION 11.10 Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.



     SECTION 11.11 Securities in a Foreign Currency. Unless otherwise specified in an Officer’s Certificate delivered pursuant to Section 2.3 of
this Indenture with respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified percentage in aggregate principal
amount of Securities of all series or all series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars, then the principal amount of Securities of
such series which shall be deemed to be Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be



59









 







obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar buying rate in New
York City for cable transfers of that currency as published by the Federal Reserve Bank of New
York. If such Market Exchange Rate is not available for any reason with respect to such currency,
the Trustee 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 The City of New York or in the country of issue of the currency in question,
or such other quotations as the Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture including without limitation any determination
contemplated in Section 5.1(g).



     All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.



     SECTION 11.12 Judgment Currency. The Issuer agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of or interest on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate
of exchange used shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or executive order to close.



     SECTION 11.13 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not be
in any way affected or impaired thereby.



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ARTICLE TWELVE




REDEMPTION OF SECURITIES AND SINKING FUNDS 




     SECTION 12.1 Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for Securities of such series.



     SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 shall
be given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 prior to the date fixed for redemption, to such Holders at such addresses
as were so furnished to the Trustee (and, in the case of any such notice given by the Issuer, the
Trustee shall make such information available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities shall be published in an Authorized Newspaper in
the Place or Places of Payment (and, if required, in an Authorized Newspaper in any other place or
places), in each case, once in each of three successive calendar weeks, the first publication to be
not less than 30 nor more than 60 days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other Security of such
series.



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



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



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     With respect to any notice of redemption of Securities of any series to be redeemed at the
option of the Issuer, unless, upon the giving of such notice, such Securities shall be deemed to
have been paid in accordance with Section 10.1, such notice may state that such redemption shall be
conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been so received such notice shall be of no force
or effect and the Issuer shall not be required to redeem such Securities. In the event that such
notice of redemption contains such a condition and such money is not so received, the redemption
shall not be made and within a reasonable time thereafter notice shall be given, in the manner in
which the notice of redemption was given, that such money was not so received and such redemption
was not required to be made.



     On or before the redemption date specified in the notice of redemption given as provided in
this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if
the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all the Securities of
such series so called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. The Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption an Officer’s Certificate stating the aggregate principal
amount of Securities to be redeemed. In case of a redemption at the election of the Issuer prior to
the expiration of any restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officer’s
Certificate stating that such restriction has been complied with.



     If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall deem appropriate and fair, Securities of such Series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.



     SECTION 12.3 Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, and the conditions, if any, set
forth in such notice have been satisfied, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed for redemption, and
on and after said date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue, and the unmatured Coupons,
if any, appertaining thereto shall be void, and, except as provided in Sections 6.5 and 10.4, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On



62









 







presentation and surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining thereto maturing after
the date fixed for redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon
to the date fixed for redemption; provided that payment of interest becoming due on or prior to the
date fixed for redemption shall be payable in the case of Securities with Coupons attached thereto,
to the Holders of the Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered as such on the
relevant record date subject to the terms and provisions of Sections 2.3 and 2.7 hereof.



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



     If any Security with Coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender
of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.



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



     SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer.



     SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of the 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 the Securities of any series is herein
referred to as an “optional sinking fund payment”. The date on which a sinking fund payment is to
be made is herein referred to as the “sinking fund payment date”.



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



63









 







for optional sinking fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such series. Securities
so delivered or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.



     On or before the 60th day next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee an Officer’s Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series
and the basis for such credit, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer’s Certificate shall be irrevocable and upon
its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officer’s
Certificate and Securities specified in this paragraph, if any, shall not constitute a default but
shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof
in any Foreign Currency) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency) if the Issuer shall so request with respect to the Securities of any particular series,
such cash shall be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency) or less and the Issuer makes no such request then it shall be carried over until
a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available. The
Trustee shall select, in the manner provided in Section 12.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such series (or portions thereof) so selected. Securities shall be
excluded from eligibility for redemption under this Section if they are identified by registration
and certificate number in an Officer’s Certificate delivered to the Trustee at least 60 days prior
to



64









 







the sinking fund payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified in such Officer’s
Certificate as directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in Section 12.2 (and
with the effect provided in Section 12.3) for the redemption of Securities of such series in part
at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities
of any particular series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest
on, the Securities of such series at maturity.



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



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.



65









 





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



     



	 	 	 	 	 	 	 
	 

	 	HAWAIIAN ELECTRIC INDUSTRIES, INC.	 
	 


	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 






[CORPORATE SEAL]




Attest:




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 






U.S. BANK NATIONAL ASSOCIATION, as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Title:	 	 






[CORPORATE SEAL]




Attest:




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 






 









 





	 	 	 	 	 	 	 	 	 
	STATE OF HAWAII

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	ss.	 	 
	COUNTY OF HONOLULU

	 	 	)	 	 	 	 	 






     On this ___
of                      before me personally came                                         , to me
personally known, who, being by me duly sworn, did depose and say that he resides at
                                        
 that he is the                                          of Hawaiian Electric Industries,
Inc., one of the corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.



[NOTARIAL SEAL]




	 	 	 
	 
	 

Notary Public

	 	 






 









 






	 	 	 	 	 	 	 
	STATE OF HAWAII

	 	 	)	 	 	 
	 

	 	 	)	 	 	ss.
	COUNTY OF HONOLULU

	 	 	)	 	 	 






     On this ___
of                      before me personally came                                         , to me
personally known, who, being by me duly sworn, did depose and say that he resides at
                                         that he is the                      of Hawaiian Electric Industries,
Inc., one of the corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.



[NOTARIAL SEAL]




	 	 	 
	 
	 

Notary Public

	 	 






 









 






	 	 	 	 	 	 	 
	STATE OF HAWAII

	 	 	)	 	 	 
	 

	 	 	)	 	 	ss.
	COUNTY OF HONOLULU

	 	 	)	 	 	 






     On this ___
of                      before me personally came                                         , to me
personally known, who, being by me duly sworn, did depose and say that he resides at
                                         that he is a                                        
  of U.S. Bank National Association, one
of the corporations described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.



[NOTARIAL SEAL]




	 	 	 
	 
	 

Notary Public