EXHIBIT 4.6


 


 


ADOLOR
CORPORATION


 


INDENTURE


 


Dated as of


 


            ,
20    


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  No.

  
	
   

  	
   

  
	
  ARTICLE I — DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  Section 1.01 Definitions

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II - FORMS OF SECURITIES

  	
  8

  
	
   

  	
   

  
	
  Section 2.01 Terms of the Securities

  	
  8

  
	
   

  	
   

  
	
  Section 2.02 Form of Trustee’s Certificate of Authentication

  	
  9

  
	
   

  	
   

  
	
  Section 2.03 Form of Trustee’s Certificate of Authentication
  by an Authenticating Agent

  	
  9

  
	
   

  	
   

  
	
  ARTICLE III - THE DEBT SECURITIES

  	
  9

  
	
   

  	
   

  
	
  Section 3.01 Amount; Issuable in Series

  	
  9

  
	
   

  	
   

  
	
  Section 3.02 Denominations

  	
  11

  
	
   

  	
   

  
	
  Section 3.03 Execution, Authentication, Delivery and Dating

  	
  11

  
	
   

  	
   

  
	
  Section 3.04 Temporary Securities

  	
  13

  
	
   

  	
   

  
	
  Section 3.05 Registrar

  	
  13

  
	
   

  	
   

  
	
  Section 3.06 Transfer and Exchange

  	
  13

  
	
   

  	
   

  
	
  Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities

  	
  16

  
	
   

  	
   

  
	
  Section 3.08 Payment of Interest; Interest Rights Preserved

  	
  16

  
	
   

  	
   

  
	
  Section 3.09 Cancellation

  	
  17

  
	
   

  	
   

  
	
  Section 3.10 Computation of Interest

  	
  17

  
	
   

  	
   

  
	
  Section 3.11 Currency of Payments in Respect of Securities

  	
  17

  
	
   

  	
   

  
	
  Section 3.12 Judgments

  	
  18

  
	
   

  	
   

  
	
  Section 3.13 CUSIP Numbers

  	
  18

  
	
   

  	
   

  
	
  ARTICLE IV - REDEMPTION OF SECURITIES

  	
  18

  
	
   

  	
   

  
	
  Section 4.01 Applicability of Right of Redemption

  	
  18

  
	
   

  	
   

  
	
  Section 4.02 Selection of Securities to be Redeemed

  	
  18

  
	
   

  	
   

  
	
  Section 4.03 Notice of Redemption

  	
  19

  
	
   

  	
   

  
	
  Section 4.04 Deposit of Redemption Price

  	
  19

  
	
   

  	
   

  
	
  Section 4.05 Securities Payable on Redemption Date

  	
  19

  
	
   

  	
   

  
	
  Section 4.06 Securities Redeemed in Part

  	
  20

  



 


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  Page

  No.

  
	
   

  	
   

  
	
  ARTICLE V - SINKING FUNDS

  	
  20

  
	
   

  	
   

  
	
  Section 5.01 Applicability of Sinking Fund

  	
  20

  
	
   

  	
   

  
	
  Section 5.02 Mandatory Sinking Fund Obligation

  	
  20

  
	
   

  	
   

  
	
  Section 5.03 Optional Redemption at Sinking Fund Redemption Price

  	
  21

  
	
   

  	
   

  
	
  Section 5.04 Application of Sinking Fund Payment

  	
  21

  
	
   

  	
   

  
	
  ARTICLE VI - PARTICULAR COVENANTS OF THE COMPANY

  	
  22

  
	
   

  	
   

  
	
  Section 6.01 Payments of Securities

  	
  22

  
	
   

  	
   

  
	
  Section 6.02 Paying Agent

  	
  22

  
	
   

  	
   

  
	
  Section 6.03 To Hold Payment in Trust

  	
  22

  
	
   

  	
   

  
	
  Section 6.04 Merger, Consolidation and Sale of Assets

  	
  23

  
	
   

  	
   

  
	
  Section 6.05 Compliance Certificate

  	
  24

  
	
   

  	
   

  
	
  Section 6.06 Conditional Waiver by Holders of Securities

  	
  24

  
	
   

  	
   

  
	
  Section 6.07 Statement by Officers as to Default

  	
  24

  
	
   

  	
   

  
	
  ARTICLE VII - REMEDIES OF TRUSTEE AND SECURITYHOLDERS

  	
  24

  
	
   

  	
   

  
	
  Section 7.01 Events of Default

  	
  24

  
	
   

  	
   

  
	
  Section 7.02 Acceleration; Rescission and Annulment

  	
  25

  
	
   

  	
   

  
	
  Section 7.03 Other Remedies

  	
  26

  
	
   

  	
   

  
	
  Section 7.04 Trustee as Attorney-in-Fact

  	
  27

  
	
   

  	
   

  
	
  Section 7.05 Priorities

  	
  27

  
	
   

  	
   

  
	
  Section 7.06 Control by Securityholders; Waiver of Past Defaults

  	
  27

  
	
   

  	
   

  
	
  Section 7.07 Limitation on Suits

  	
  28

  
	
   

  	
   

  
	
  Section 7.08 Undertaking for Costs

  	
  28

  
	
   

  	
   

  
	
  Section 7.09 Remedies Cumulative

  	
  28

  
	
   

  	
   

  
	
  ARTICLE VIII - CONCERNING THE SECURITYHOLDERS

  	
  29

  
	
   

  	
   

  
	
  Section 8.01 Evidence of Action of Securityholders

  	
  29

  
	
   

  	
   

  
	
  Section 8.02 Proof of Execution or Holding of Securities

  	
  29

  
	
   

  	
   

  
	
  Section 8.03 Persons Deemed Owners

  	
  29

  
	
   

  	
   

  
	
  Section 8.04 Effect of Consents

  	
  30

  



 


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  Page

  No.

  
	
   

  	
   

  
	
  ARTICLE IX - SECURITYHOLDERS’ MEETINGS

  	
  30

  
	
   

  	
   

  
	
  Section 9.01 Purposes of Meetings

  	
  30

  
	
   

  	
   

  
	
  Section 9.02 Call of Meetings by Trustee

  	
  30

  
	
   

  	
   

  
	
  Section 9.03 Call of Meetings by Company or Securityholders

  	
  30

  
	
   

  	
   

  
	
  Section 9.04 Qualifications for Voting

  	
  30

  
	
   

  	
   

  
	
  Section 9.05 Regulation of Meetings

  	
  31

  
	
   

  	
   

  
	
  Section 9.06 Voting

  	
  31

  
	
   

  	
   

  
	
  Section 9.07 No Delay of Rights by Meeting

  	
  31

  
	
   

  	
   

  
	
  ARTICLE X - REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’
  LISTS

  	
  32

  
	
   

  	
   

  
	
  Section 10.01 Reports by Trustee

  	
  32

  
	
   

  	
   

  
	
  Section 10.02 Reports by the Company

  	
  32

  
	
   

  	
   

  
	
  Section 10.03 Securityholders’ Lists

  	
  32

  
	
   

  	
   

  
	
  ARTICLE XI - CONCERNING THE TRUSTEE

  	
  32

  
	
   

  	
   

  
	
  Section 11.01 Rights of Trustees; Compensation and Indemnity

  	
  32

  
	
   

  	
   

  
	
  Section 11.02 Duties of Trustee

  	
  34

  
	
   

  	
   

  
	
  Section 11.03 Notice of Defaults

  	
  35

  
	
   

  	
   

  
	
  Section 11.04 Eligibility; Disqualification

  	
  35

  
	
   

  	
   

  
	
  Section 11.05 Registration and Notice; Removal

  	
  35

  
	
   

  	
   

  
	
  Section 11.06 Successor Trustee by Appointment

  	
  36

  
	
   

  	
   

  
	
  Section 11.07 Successor Trustee by Merger

  	
  37

  
	
   

  	
   

  
	
  Section 11.08 Right to Rely on Officer’s Certificate

  	
  37

  
	
   

  	
   

  
	
  Section 11.09 Appointment of Authenticating Agent

  	
  37

  
	
   

  	
   

  
	
  Section 11.10 Communications by Securityholders with Other Securityholders

  	
  38

  
	
   

  	
   

  
	
  ARTICLE XII - SATISFACTION AND DISCHARGE; DEFEASANCE

  	
  38

  
	
   

  	
   

  
	
  Section 12.01 Applicability of Article

  	
  38

  
	
   

  	
   

  
	
  Section 12.02 Satisfaction and Discharge of Indenture

  	
  38

  
	
   

  	
   

  
	
  Section 12.03 Defeasance upon Deposit of Moneys or U.S. Government
  Obligations

  	
  39

  



 


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  Page

  No.

  
	
   

  	
   

  
	
  Section 12.04 Repayment to Company

  	
  40

  
	
   

  	
   

  
	
  Section 12.05 Indemnity for U.S. Government Obligations

  	
  40

  
	
   

  	
   

  
	
  Section 12.06 Application of Trust Money

  	
  40

  
	
   

  	
   

  
	
  Section 12.07 Deposits of Non-U.S. Currencies

  	
  40

  
	
   

  	
   

  
	
  ARTICLE XIII - IMMUNITY OF CERTAIN PERSONS

  	
  41

  
	
   

  	
   

  
	
  Section 13.01 No Personal Liability

  	
  41

  
	
   

  	
   

  
	
  ARTICLE XIV - SUPPLEMENTAL INDENTURES

  	
  41

  
	
   

  	
   

  
	
  Section 14.01 Without Consent of Securityholders

  	
  41

  
	
   

  	
   

  
	
  Section 14.02 With Consent of Securityholders; Limitations

  	
  42

  
	
   

  	
   

  
	
  Section 14.03 Trustee Protected

  	
  43

  
	
   

  	
   

  
	
  Section 14.04 Effect of Execution of Supplemental Indenture

  	
  43

  
	
   

  	
   

  
	
  Section 14.05 Notation on or Exchange of Securities

  	
  43

  
	
   

  	
   

  
	
  Section 14.06 Conformity with TIA

  	
  44

  
	
   

  	
   

  
	
  ARTICLE XV - SUBORDINATION OF SECURITIES

  	
  44

  
	
   

  	
   

  
	
  Section 15.01 Agreement to Subordinate

  	
  44

  
	
   

  	
   

  
	
  Section 15.02 Distribution on Dissolution, Liquidation and
  Reorganization;  Subrogation of Securities

  	
  44

  
	
   

  	
   

  
	
  Section 15.03 No Payment on Securities in Event of Default on
  Senior Indebtedness

  	
  45

  
	
   

  	
   

  
	
  Section 15.04 Payments on Securities Permitted

  	
  45

  
	
   

  	
   

  
	
  Section 15.05 Authorization of Securityholders to Trustee to
  Effect Subordination

  	
  45

  
	
   

  	
   

  
	
  Section 15.06 Notices to Trustee

  	
  45

  
	
   

  	
   

  
	
  Section 15.07 Trustee as Holder of Senior Indebtedness

  	
  46

  
	
   

  	
   

  
	
  Section 15.08 Modifications of Terms of Senior Indebtedness

  	
  46

  
	
   

  	
   

  
	
  Section 15.09 Reliance on Judicial Order or Certificate of
  Liquidating Agent

  	
  46

  
	
   

  	
   

  
	
  Section 15.10 Satisfaction and Discharge; Defeasance and Covenant
  Defeasance

  	
  46

  
	
   

  	
   

  
	
  Section 15.11 Trustee Not Fiduciary for Holders of Senior
  Indebtedness

  	
  47

  
	
   

  	
   

  
	
  ARTICLE XVI - MISCELLANEOUS PROVISIONS

  	
  47

  
	
   

  	
   

  
	
  Section 16.01 Certificates and Opinions as to Conditions Precedent

  	
  47

  



 


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  Page

  No.

  
	
   

  	
   

  
	
  Section 16.02 Trust Indenture Act Controls

  	
  48

  
	
   

  	
   

  
	
  Section 16.03 Notices to the Company and Trustee

  	
  48

  
	
   

  	
   

  
	
  Section 16.04 Notices to Securityholders; Waiver

  	
  48

  
	
   

  	
   

  
	
  Section 16.05 Legal Holiday

  	
  48

  
	
   

  	
   

  
	
  Section 16.06 Effects of Headings and Table of Contents

  	
  48

  
	
   

  	
   

  
	
  Section 16.07 Successors and Assigns

  	
  48

  
	
   

  	
   

  
	
  Section 16.08 Separability Clause

  	
  48

  
	
   

  	
   

  
	
  Section 16.09 Benefits of Indenture

  	
  48

  
	
   

  	
   

  
	
  Section 16.10 Counterparts Originals

  	
  49

  
	
   

  	
   

  
	
  Section 16.11 Governing Law; Waiver of Trial by Jury

  	
  49

  



 


v
















 


ADOLOR CORPORATION


 


INDENTURE


 


Dated as of


 


            ,
20   


 


DEBT SECURITIES


 


Trustee


 


INDENTURE
dated as of             ,
20    , among Adolor Corporation, a Delaware corporation
(the “Company”),
and                     ,
as trustee (the “Trustee”).


 


WITNESSETH:


 


WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of debentures, notes, bonds or other evidences of
indebtedness (the “Securities”)
in an unlimited aggregate principal amount to be issued from time to time in
one or more series as provided in this Indenture; and


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


That,
in consideration of the premises and the purchase of the Securities by the
Holders thereof for the equal and proportionate benefit of all of the present
and future Holders of the Securities, each party agrees and covenants as
follows:


 


ARTICLE I


 


DEFINITIONS


 


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


 


(a) the
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


(b) all
terms used herein without definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein; and


 


(c) 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.


 


(d) References
to “Article” or “Section” or other subdivision herein are references to an
Article, Section or other subdivision of the Indenture, unless the context
otherwise requires.


 


Section 1.01
Definitions.


 


(a) Unless otherwise
defined in this Indenture or the context otherwise requires, all terms used
herein shall have the meanings assigned to them in the Trust Indenture Act.


 


(b) Unless the
context otherwise requires, the terms defined in this Section 1.01(b) shall
for all purposes of this Indenture have the meanings hereinafter set forth, the
following definitions to be equally applicable to both the singular and the
plural forms of any of the terms herein defined:


 

















 


Affiliate:


 


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


 


Authenticating Agent:


 


The
term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.


 


Board of Directors:


 


The
term “Board of Directors” shall mean either the board of directors of the
Company or the executive or any other committee of that board duly authorized
to act in respect hereof.


 


Board Resolution:


 


The
term “Board Resolution” shall mean a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors (or by a committee of the Board of
Directors to the extent that any such other committee has been authorized by
the Board of Directors to establish or approve the matters contemplated) and to
be in full force and effect on the date of such certification and delivered to
the Trustee.


 


Business Day:


 


The
term “Business Day,” when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.


 


Capital Stock:


 


The
term “Capital Stock” shall mean:


 


(a) in the case of a
corporation, corporate stock;


 


(b) in the case of
an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;


 


(c) in the case of a
partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and


 


(d) any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person, but excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.


 


Code:


 


The
term “Code” shall mean the Internal Revenue Code of 1986 as in effect on the
date hereof.


 


Company:


 


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


 


2

















 


Company Order:


 


The
term “Company Order” shall mean a written order signed in the name of the
Company by the Chairman, Chief Executive Officer, President, Chief Financial
Officer, any Vice President, Treasurer, any Assistant Treasurer, Controller,
Assistant Controller, Secretary or any Assistant Secretary of the Company, and
delivered to the Trustee.


 


Corporate Trust Office:


 


The
term “Corporate Trust Office,” or other similar term, shall mean the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at                     ,
or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the principal corporate trust officer of any
successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).


 


Currency:


 


The
term “Currency” shall mean U.S. Dollars or Foreign Currency.


 


Default:


 


The
term “Default” shall have the meaning assigned to it in Section 11.03.


 


Defaulted Interest:


 


The
term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).


 


Depositary:


 


The
term “Depositary” shall mean, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.01
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 Securities of
that series.


 


Designated Currency:


 


The
term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.


 


Discharged:


 


The
term “Discharged” shall have the meaning assigned to it in Section 12.03.


 


Event of Default:


 


The
term “Event of Default” shall have the meaning specified in Section 7.01.


 


Exchange Act:


 


The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.


 


Exchange Rate:


 


The
term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.


 


Floating Rate Security:


 


The
term “Floating Rate Security” shall mean a Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 3.01.


 


3

















 


Foreign Currency:


 


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


 


GAAP:


 


The
term “GAAP,” with respect to any computation required or permitted hereunder,
shall mean generally accepted accounting principles in the United States as in
effect from time to time, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.


 


Global Security:


 


The
term “Global Security” shall mean any Security that evidences all or part of a
series of Securities, issued in fully-registered certificated form to the
Depositary for such series in accordance with Section 3.03 and bearing the
legend prescribed in Section 3.03(g).


 


Holder; Holder of Securities:


 


The
terms “Holder” and “Holder of Securities” are defined under “Securityholder;
Holder of Securities; Holder.”


 


Indebtedness:


 


The
term “Indebtedness” shall mean any and all obligations of a Person for money
borrowed which, in accordance with GAAP, would be reflected on the balance sheet
of such Person as a liability on the date as of which Indebtedness is to be
determined.


 


Indenture:


 


The
term “Indenture” or “this Indenture” shall mean this instrument and all
indentures supplemental hereto.


 


Interest:


 


The
term “interest” shall mean, with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, interest payable after
Maturity.


 


Interest Payment Date:


 


The
term “Interest Payment Date” shall mean, with respect to any Security, the
Stated Maturity of an installment of interest on such Security.


 


Mandatory Sinking Fund Payment:


 


The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01.


 


Maturity:


 


The
term “Maturity,” with respect to any Security, shall mean the date on which the
principal of such Security shall become due and payable as therein and herein
provided, whether by declaration, call for redemption or otherwise.


 


Members:


 


The
term “Members” shall have the meaning assigned to it in Section 3.03(i).


 


4

















 


Officer’s Certificate:


 


The term “Officer’s Certificate” shall mean a
certificate signed by any of the Chairman of the Board of Directors, Chief
Executive Officer, President, Chief Financial Officer, any Vice President,
Treasurer, any Assistant Treasurer, Controller, Assistant Controller, Secretary
or any Assistant Secretary of the Company and delivered to the Trustee. Each
such certificate shall include the statements provided for in Section 16.01
if and to the extent required by the provisions of such Section.


 


Opinion of Counsel:


 


The
term “Opinion of Counsel” shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company, or may be
other counsel that meets the requirements provided for in Section 16.01.


 


Optional Sinking Fund Payment:


 


The
term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01.


 


Original Issue Discount Security:


 


The
term “Original Issue Discount Security” shall mean any Security that is issued
with “original issue discount” within the meaning of Section 1273(a) of
the Code and the regulations thereunder and any other Security designated by
the Company as issued with original issue discount for United States federal
income tax purposes.


 


Outstanding:


 


The
term “Outstanding,” when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:


 


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


 


(b) Securities or
portions thereof for which payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities or Securities as to which the Company’s obligations have been
Discharged; provided, however, that if such Securities or portions thereof are
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and


 


(c) Securities that
have been paid pursuant to Section 3.07(b) or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in respect of which there
shall have been presented to a Responsible Officer of the Trustee proof
satisfactory to it that such Securities are held by a protected purchaser in
whose hands such Securities are valid obligations of the Company;


 


provided, however, that
in determining whether the Holders of the requisite principal amount of
Securities of a series Outstanding have performed any action hereunder,
Securities owned by the Company or any other obligor upon the Securities of
such series or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such action, only
Securities of such series that a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned that 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 to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon such Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite principal amount
of Outstanding Securities of a series have performed any action hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purpose 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 7.02
and the principal amount of a Security denominated in a Foreign Currency that
shall be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 3.11(b).


 


5

















 


Paying Agent:


 


The term “Paying Agent” shall have the meaning
assigned to it in Section 6.02(a).


 


Person:


 


The
term “Person” shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a joint stock company, a trust, an
unincorporated organization or a government or an agency or political
subdivision thereof.


 


Place of Payment:


 


The
term “Place of Payment” shall mean, when used with respect to the Securities of
any series, the place or places where the principal of and premium, if any, and
interest on the Securities of that series are payable as specified pursuant to Section 3.01.


 


Predecessor Security:


 


The
term “Predecessor Security” shall mean, with respect to any Security, every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.


 


Record Date:


 


The
term “Record Date” shall mean, with respect to any interest payable on any
Security on any Interest Payment Date, the close of business on any date
specified in such Security for the payment of interest pursuant to Section 3.01.


 


Redemption Date:


 


The
term “Redemption Date” shall mean, when used with respect to any Security to be
redeemed, in whole or in part, the date fixed for such redemption by or
pursuant to this Indenture and the terms of such Security, which, in the case
of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.


 


Redemption Price:


 


The
term “Redemption Price,” when used with respect to any Security to be redeemed,
in whole or in part, shall mean the price at which it is to be redeemed
pursuant to the terms of the Security and this Indenture.


 


Register:


 


The
term “Register” shall have the meaning assigned to it in Section 3.05(a).


 


Registrar:


 


The
term “Registrar” shall have the meaning assigned to it in Section 3.05(a).


 


Responsible Officers:


 


The
term “Responsible Officers” of the Trustee hereunder shall mean any Vice
President, any Assistant Vice President, any Trust Officer, any Assistant Trust
Officer or any other officer associated with the corporate trust department of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


SEC:


 


The
term “SEC” shall mean the U.S. Securities and Exchange Commission, as
constituted from time to time.


 


6

















 


Securities Act:


 


The
term “Securities Act” shall mean the Securities Act of 1933, as amended.


 


Security:


 


The
term “Security” or “Securities” shall have the meaning stated in the recitals
and shall more particularly mean one or more of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of this
Indenture.


 


Security Custodian:


 


The
term “Security Custodian” shall mean the custodian with respect to any Global
Security appointed by the Depositary, or any successor Person thereto, and
shall initially be the Paying Agent.


 


Securityholder; Holder of Securities; Holder:


 


The
term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the
Person in whose name Securities shall be registered in the Register kept for
that purpose hereunder.


 


Senior Indebtedness:


 


The
term “Senior Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (x) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed, for
money borrowed other than (a) any Indebtedness of the Company which when
incurred, and without respect to any election under Section 1111(b) of
the Federal Bankruptcy Code, was without recourse to the Company, (b) any
Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness
to any employee of the Company, (d) any liability for taxes, (e) Trade
Payables and (f) any Indebtedness of the Company which is expressly
subordinate in right of payment to any other Indebtedness of the Company, and (y) renewals,
extensions, modifications and refundings of any such Indebtedness. For purposes
of the foregoing and the definition of “Senior Indebtedness,” the phrase “subordinated
in right of payment” means debt subordination only and not lien subordination,
and accordingly, (i) unsecured indebtedness shall not be deemed to be
subordinated in right of payment to secured indebtedness merely by virtue of
the fact that it is unsecured, and (ii) junior liens, second liens and
other contractual arrangements that provide for priorities among Holders of the
same or different issues of indebtedness with respect to any collateral or the
proceeds of collateral shall not constitute subordination in right of payment.
This definition may be modified or superseded by a supplemental indenture.


 


Special Record Date:


 


The
term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).


 


Stated Maturity:


 


The
term “Stated Maturity” when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or
premium, if any, on such Security or such installment of interest is due and
payable.


 


Subsidiary:


 


The
term “Subsidiary,” when used with respect to any Person, shall mean:


 


(a) any corporation,
limited liability company, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency and after giving effect to any
voting agreement or stockholders’ agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and


 


7

















 


(b) any partnership (i) the
sole general partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (ii) the only general partners of which are
that Person or one or more Subsidiaries of that Person (or any combination
thereof).


 


Successor Company:


 


The
term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).


 


Trade Payables:


 


The
term “Trade Payables” means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the Company or
any Subsidiary of the Company in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities).


 


Trust Indenture Act; TIA:


 


The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939,
as amended.


 


Trustee:


 


The
term “Trustee” shall mean the Person named as the “Trustee” in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall 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 Securities of that series.


 


U.S. Dollars:


 


The
term “U.S. Dollars” shall mean such currency of the United States as at the
time of payment shall be legal tender for the payment of public and private
debts.


 


U.S. Government Obligations:


 


The
term “U.S. Government Obligations” shall mean (i) direct non-callable
obligations of, or guaranteed by, the United States or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States, in either case, for the payment of which guarantee or
obligation the full faith and credit of the United States is pledged.


 


United States:


 


The
term “United States” shall mean the United States of America (including the
States and the District of Columbia), its territories and its possessions and
other areas subject to its jurisdiction.


 


ARTICLE II


 


FORMS OF SECURITIES


 


Section 2.01
Terms of the Securities.


 


(a) The Securities
of each series shall be substantially in the form set forth in a Company Order
or in one or more indentures supplemental hereto, and shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the Securities may
be listed or of any automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers executing
such Securities as conclusively evidenced by their execution of such
Securities.


 


8

















 


(b) The terms and
provisions of the Securities shall constitute, and are hereby expressly made, a
part of this Indenture, and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture expressly agree to
such terms and provisions and to be bound thereby.


 


Section 2.02
Form of Trustee’s Certificate of Authentication.


 


(a) Only such of the
Securities as shall bear thereon a certificate substantially in the form of the
Trustee’s certificate of authentication hereinafter recited, executed by the
Trustee by manual signature, shall be valid or become obligatory for any
purpose or entitle the Holder thereof to any right or benefit under this
Indenture.


 


(b) Each Security
shall be dated the date of its authentication, except that any Global Security
shall be dated as of the date specified as contemplated in Section 3.01.


 


(c) The form of the
Trustee’s certificate of authentication to be borne by the Securities shall be
substantially as follows:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


	
  Date of Authentication:

  	
   

  	
   

  	
   

  	
  , as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  
						



 


Section 2.03
Form of Trustee’s Certificate of Authentication by an Authenticating
Agent. 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 by such Authenticating Agent to be borne by Securities of each
such series shall be substantially as follows:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


	
  Date of Authentication:

  	
   

  	
   

  	
   

  	
  , as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  as Authenticating Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  
						



 


ARTICLE III


 


THE DEBT SECURITIES


 


Section 3.01
Amount; Issuable in Series. The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series. There shall be set forth in a
Company Order or in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:


 


9

















 


(a) the title of the
Securities of the series (which shall distinguish the Securities of such series
from the Securities of all other series, except to the extent that additional
Securities of an existing series are being issued);


 


(b) whether the
Securities will be secured or unsecured, and the terms of any secured debt;


 


(c) the terms of the
subordination of any series of subordinated Securities;


 


(d) 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 transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 3.04, 3.06, 3.07,
4.06, or 14.05);


 


(e) the dates on
which or periods during which the Securities of the series may be issued, and
the dates on, or the range of dates within, which the principal of and premium,
if any, on the Securities of such series are or may be payable or the method by
which such date or dates shall be determined or extended;


 


(f) the rate or
rates at which the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which such date or dates
shall be determined, the Interest Payment Dates on which any such interest
shall be payable, and the Record Dates for the determination of Holders to whom
interest is payable on such Interest Payment Dates or the method by which such
date or dates shall be determined, the right, if any, to extend or defer
interest payments and the duration of such extension or deferral;


 


(g) if other than
U.S. Dollars, the Currency in which Securities of the series shall be
denominated or in which payment of the principal of, premium, if any, or
interest on the Securities of the series shall be payable and any other terms
concerning such payment;


 


(h) if the amount of
payment of principal of, premium, if any, or interest on the Securities of the
series may be determined with reference to an index, formula or other method
including, but not limited to, an index based on a Currency or Currencies other
than that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined;


 


(i) if the principal
of, premium, if any, or interest on Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a Currency other than
that in which the Securities are denominated or stated to be payable without
such election, the period or periods within which, and the terms and conditions
upon which, such election may be made and the time and the manner of
determining the exchange rate between the Currency in which the Securities are
denominated or payable without such election and the Currency in which the
Securities are to be paid if such election is made;


 


(j) the place or
places, if any, in addition to or instead of the Corporate Trust Office of the
Trustee where the principal of, premium, if any, and interest on Securities of
the series shall be payable, and where Securities of any series may be
presented for registration of transfer, exchange or conversion, and the place
or places where notices and demands to or upon the Company in respect of the
Securities of such series may be made;


 


(k) the form of
consideration in which principal of, premium or interest on the Securities will
be paid;


 


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


 


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


 


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


 


(o) if other than
the principal amount thereof, the portion of the principal amount of the
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 7.02;


 


10
















 


(p) whether the
Securities of the series are to be issued as Original Issue Discount Securities
and the amount of discount with which such Securities may be issued;


 


(q) provisions, if
any, for the defeasance of Securities of the series in whole or in part and any
addition or change in the provisions related to satisfaction and discharge;


 


(r) whether the
Securities of the series are to be issued in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary for such Global
Security or Securities and the terms and conditions, if any, upon which
interests in such Global Security or Securities may be exchanged in whole or in
part for the individual Securities represented thereby;


 


(s) the date as of
which any Global Security of the series shall be dated if other than the
original issuance of the first Security of the series to be issued;


 


(t) the form of the
Securities of the series;


 


(u) if the
Securities of the series are to be convertible into or exchangeable for any
securities or property of any Person (including the Company), the terms and
conditions upon which such Securities will be so convertible or exchangeable,
and any additions or changes, if any, to permit or facilitate such conversion
or exchange;


 


(v) whether the
Securities of such series are subject to subordination and the terms of such
subordination;


 


(w) any restriction
or condition on the transferability of the Securities of such series;


 


(x) any addition or
change in the provisions related to compensation and reimbursement of the
Trustee which applies to Securities of such series;


 


(y) any addition or
change in the provisions related to supplemental indentures set forth in
Sections 14.04 and 14.02 which applies to Securities of such series;


 


(z) provisions, if
any, granting special rights to Holders upon the occurrence of specified
events;


 


(aa) any addition to or
change in the Events of Default which applies to any Securities of the series
and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section 7.02
and any addition or change in the provisions set forth in Article VII
which applies to Securities of the series;


 


(bb) any addition to or
change in the covenants set forth in Article VI which applies to
Securities of the series; and


 


(cc) any other terms of
the Securities of such series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 14.01).


 


All Securities of any one
series shall be substantially identical, except as to denomination and except
as may otherwise be provided herein or set forth in a Company Order or in one
or more indentures supplemental hereto.


 


Section 3.02
Denominations. In the absence of any specification pursuant to Section 3.01
with respect to Securities of any series, the Securities of such series shall
be issuable only as Securities in denominations of any integral multiple of
$1,000, and shall be payable only in U.S. Dollars.


 


Section 3.03
Execution, Authentication, Delivery and Dating.


 


(a) The Securities
shall be executed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board of Directors, Chief Executive
Officer, President, Chief Operating Officer, Chief Financial Officer, one of
its Vice Presidents or Treasurer. If the Person whose signature is on a
Security no longer holds that office at the time the Security is authenticated
and delivered, the Security shall nevertheless be valid.


 


(b) At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities and, if required pursuant to Section 3.01,
a supplemental indenture or Company Order setting forth the terms of the
Securities of a series. 


 


11

















 


The Trustee shall thereupon authenticate and deliver
such Securities without any further action by the Company. The Company Order
shall specify the amount of Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated.


 


(c) In authenticating
the first Securities of any series and accepting the additional
responsibilities under this Indenture in relation to such Securities the
Trustee shall receive, and (subject to Section 11.02) shall be fully
protected in relying upon an Officer’s Certificate and an Opinion of Counsel,
each prepared in accordance with Section 16.01 stating that the conditions
precedent, if any, provided for in the Indenture have been complied with.


 


(d) The Trustee
shall have the right to decline to authenticate and deliver the Securities
under this Section 3.03 if the issue of the Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.


 


(e) Each Security
shall be dated the date of its authentication, except as otherwise provided
pursuant to Section 3.01 with respect to the Securities of such series.


 


(f) Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all of
the Securities of any series are not to be originally issued at the same time,
then the documents required to be delivered pursuant to this Section 3.03
must be delivered only once prior to the authentication and delivery of the first
Security of such series;


 


(g) If the Company
shall establish pursuant to Section 3.01 that the Securities of a series
are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall represent an
aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global Securities, (ii) shall
be registered, if in registered form, in the name of the Depositary for such
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
instruction and (iv) shall bear a legend substantially to the following
effect:


 


“Unless and until it is exchanged in whole or in part
for the individual Securities represented hereby, this Global Security may not
be transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.”


 


The
aggregate principal amount of each Global Security may from time to time be
increased or decreased by adjustments made on the records of the Security
Custodian, as provided in this Indenture.


 


(h) Each Depositary
designated pursuant to Section 3.01 for a Global Security in registered
form must, at the time of its designation and at all times while it serves as
such Depositary, be a clearing agency registered under the Exchange Act and any
other applicable statute or regulation.


 


(i) Members of, or
participants in, the Depositary (“Members”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the
Depositary or by the Security Custodian under such Global Security, and the
Depositary may be treated by the Company, the Trustee, the Paying Agent and the
Registrar and any of their agents as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee, the Paying Agent or the Registrar or
any of their agents from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Members, the operation of customary practices of the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Security. The Holder of a Global Security may grant
proxies and otherwise authorize any Person, including Members and Persons that
may hold interests through Members, to take any action that a Holder is
entitled to take under this Indenture or the Securities.


 


(j) No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent by manual or facsimile
signature of an authorized signatory of the Trustee, and such certificate upon
any Security shall be conclusive 


 


12

















 


evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.


 


Section 3.04
Temporary Securities.


 


(a) Pending the
preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities that are printed, lithographed, typewritten, mimeographed or
otherwise reproduced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine,
as conclusively evidenced by their execution of such Securities. Any such
temporary Security may be in global form, representing all or a portion of the
Outstanding Securities of such series. Every such temporary Security shall be
executed by the Company and shall be authenticated and delivered by the Trustee
upon the same conditions and in substantially the same manner, and with the
same effect, as the definitive Security or Securities in lieu of which it is
issued.


 


(b) If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of such temporary Securities at the office or agency of the
Company in a Place of Payment for such series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations and of like tenor. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.


 


(c) Upon any
exchange of a portion of a temporary Global Security for a definitive Global
Security or for the individual Securities represented thereby pursuant to this Section 3.04
or Section 3.06, the temporary Global Security shall be endorsed by the
Trustee to reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.


 


Section 3.05
Registrar.


 


(a) The Company will
keep, at an office or agency to be maintained by it in a Place of Payment where
Securities may be presented for registration or presented and surrendered for
registration of transfer or of exchange, and where Securities of any series
that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable (the “Registrar”), a security register for the registration
and the registration of transfer or of exchange of the Securities (the
registers maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to
as the “Register”),
as in this Indenture provided, which Register shall at all reasonable times be
open for inspection by the Trustee. Such Register shall be in written form or
in any other form capable of being converted into written form within a
reasonable time. The Company may have one or more co-Registrars; the term “Registrar” includes
any co-registrar.


 


(b) The Company
shall enter into an appropriate agency agreement with any Registrar or
co-Registrar not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of each such agent. If the Company
fails to maintain a Registrar for any series, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 11.01.
The Company or any Affiliate thereof may act as Registrar, co-Registrar or
transfer agent.


 


(c) The Company
hereby appoints the Trustee at its Corporate Trust Office as Registrar in
connection with the Securities and this Indenture, until such time as another
Person is appointed as such.


 


Section 3.06
Transfer and Exchange.


 


(a) Transfer.


 


(i) Upon surrender
for registration of transfer of any Security of any series at the Registrar the
Company shall execute, and the Trustee or any Authenticating Agent shall
authenticate and deliver, in 


 


13

















 


the name of the designated transferee, one or more new
Securities of the same series for like aggregate principal amount of any
authorized denomination or denominations. The transfer of any Security shall
not be valid as against the Company or the Trustee unless registered at the
Registrar at the request of the Holder, or at the request of his, her or its
attorney duly authorized in writing.


 


(ii) Notwithstanding
any other provision of this Section, unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.


 


(b) Exchange.


 


(i) At the option of
the Holder, Securities of any series (other than a Global Security, except as
set forth below) may be exchanged for other Securities of the same series for
like aggregate principal amount of any authorized denomination or
denominations, upon surrender of the Securities to be exchanged at the
Registrar.


 


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


 


(c) Exchange of
Global Securities for Individual Securities. Except as provided below, owners
of beneficial interests in Global Securities will not be entitled to receive
individual Securities.


 


(i) Individual
Securities shall be issued to all owners of beneficial interests in a Global
Security in exchange for such interests if: (A) at any time the Depositary
for the Securities of a series notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for the Securities of such series shall no longer be
eligible under Section 3.03(h) and, in each case, a successor
Depositary is not appointed by the Company within 90 days of such notice, or (B) the
Company executes and delivers to the Trustee and the Registrar an Officer’s
Certificate stating that such Global Security shall be so exchangeable.


 


In connection with the
exchange of an entire Global Security for individual Securities pursuant to
this subsection (c), such Global Security shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series, will authenticate and deliver to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Security, an equal aggregate principal amount of
individual Securities of authorized denominations.


 


(ii) The owner of a
beneficial interest in a Global Security will be entitled to receive an
individual Security in exchange for such interest if an Event of Default has
occurred and is continuing. Upon receipt by the Security Custodian and
Registrar of instructions from the Holder of a Global Security directing the
Security Custodian and Registrar to (x) issue one or more individual
Securities in the amounts specified to the owner of a beneficial interest in
such Global Security and (y) debit or cause to be debited an equivalent
amount of beneficial interest in such Global Security, subject to the rules and
regulations of the Depositary:


 


(A) the Security
Custodian and Registrar shall notify the Company and the Trustee of such
instructions, identifying the owner and amount of such beneficial interest in
such Global Security;


 


(B) the Company
shall promptly execute and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series, shall
authenticate and deliver to such beneficial owner individual Securities in an
equivalent amount to such beneficial interest in such Global Security; and


 


(C) the Security
Custodian and Registrar shall decrease such Global Security by such amount in
accordance with the foregoing. In the event that the individual Securities are
not issued to each such beneficial owner promptly after the Registrar has
received a request from the Holder of a Global Security to issue such
individual Securities, the Company expressly 


 


14

















 


acknowledges, with respect to the right of any Holder
to pursue a remedy pursuant to Section 7.07 hereof, the right of any
beneficial Holder of Securities to pursue such remedy with respect to the
portion of the Global Security that represents such beneficial Holder’s
Securities as if such individual Securities had been issued.


 


(iii) If specified
by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in part for
individual Securities of such series on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge,


 


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


 


(B) to such
Depositary a new Global Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of individual Securities delivered to Holders
thereof.


 


(iv) In any exchange
provided for in clauses (i) through (iii), the Company will execute and
the Trustee will authenticate and deliver individual Securities in registered
form in authorized denominations.


 


(v) Upon the
exchange in full of a Global Security for individual Securities, such Global
Security shall be canceled by the Trustee. Individual Securities issued in
exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.


 


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


 


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


 


(f) No service
charge will be made for any registration of transfer or exchange of Securities.
The Company may require payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Securities, other than those
expressly provided in this Indenture to be made at the Company’s own expense or
without expense or charge to the Holders.


 


(g) The Company
shall not be required to (i) register, transfer or exchange Securities of
any series during a period beginning at the opening of business 15 days before
the day of the transmission of a notice of redemption of Securities of such
series selected for redemption under Section 4.03 and ending at the close
of business on the day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.


 


(h) Prior to the due
presentation for registration of transfer or exchange of any Security, the
Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any
of their agents may deem and treat the Person in whose name a Security is
registered 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 all purposes whatsoever, and none of the Company, the Trustee, the
Paying Agent, the Registrar, any co-Registrar or any of their agents shall be
affected by any notice to the contrary.


 


(i) In case a
successor Company (“Successor
Company”) has executed an indenture supplemental hereto with the
Trustee pursuant to Article XIV, any of the Securities authenticated or
delivered pursuant to such transaction may, from time to time, at the request
of the Successor Company, be exchanged for other 


 


15

















 


Securities executed in the name of the Successor
Company with such changes in phraseology and form as may be appropriate, but
otherwise identical to the Securities surrendered for such exchange and of like
principal amount; and the Trustee, upon Company Order of the Successor Company,
shall authenticate and deliver Securities as specified in such order for the
purpose of such exchange. If Securities shall at any time be authenticated and
delivered in any new name of a Successor Company pursuant to this Section 3.06
in exchange or substitution for or upon registration of transfer of any
Securities, such Successor Company, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new name.


 


(j) Each Holder of a
Security agrees to indemnify the Company and the Trustee against any liability
that may result from the transfer, exchange or assignment of such Holder’s
Security in violation of any provision of this Indenture and/or applicable
United States federal or state securities laws.


 


(k) The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


(l) Neither the
Trustee nor any agent of the Trustee shall have any responsibility for any
actions taken or not taken by the Depositary.


 


Section 3.07
Mutilated, Destroyed, Lost and Stolen Securities.


 


(a) If (i) any
mutilated Security is surrendered to the Trustee at its Corporate Trust Office
or (ii) the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Security, and there is delivered to
the Company and the Trustee security or indemnity bond satisfactory to them to
save each of them and any Paying Agent harmless, and neither the Company nor
the Trustee receives notice that such Security has been acquired by a protected
purchaser, then the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of the same
series and of like tenor, form, terms and principal amount, bearing a number
not contemporaneously outstanding, that neither gain nor loss in interest shall
result from such exchange or substitution.


 


(b) In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay the amount due on such Security in accordance with its terms.


 


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


 


(d) Every new
Security of any series issued pursuant to this Section shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.


 


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


 


Section 3.08
Payment of Interest; Interest Rights Preserved.


 


(a) Interest on any
Security that is payable and is punctually paid or duly provided for on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Record Date for such interest notwithstanding the cancellation of such
Security upon any transfer or exchange subsequent to the Record Date. Payment
of interest on Securities shall be made at the Corporate Trust Office (except
as otherwise specified pursuant to Section 3.01) or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address shall appear in the Register or, in accordance with arrangements
satisfactory to the Trustee, by wire transfer to an account designated by the
Holder.


 


16

















 


(b) Any interest on
any Security that is payable but is not punctually paid or duly provided for on
any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to
be payable to the Holder on the relevant Record Date by virtue of his, her or
its having been such a Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:


 


(i) The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered at
the close of business on a special record date for the payment of such
Defaulted Interest (a “Special
Record Date”), which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 calendar days and not less than 10 calendar days prior to the
date of the proposed payment and not less than 10 calendar days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of such Securities at their
addresses as they appear in the Register, not less than 10 calendar days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).


 


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


 


(c) Subject to the
provisions set forth herein relating to Record Dates, each Security delivered
pursuant to any provision of this Indenture in exchange or substitution for, or
upon registration of transfer of, any other Security shall carry all the rights
to interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


Section 3.09
Cancellation. Unless otherwise specified pursuant to Section 3.01
for Securities of any series, all Securities surrendered for payment,
redemption, registration of transfer or exchange or credit against any sinking
fund or otherwise shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee for cancellation and shall be promptly canceled by
it and, if surrendered to the Trustee, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall dispose of
all canceled Securities held by it in accordance with its then customary
procedures and deliver a certificate of such disposal to the Company upon its
request therefor. The acquisition of any Securities by the Company shall not
operate as a redemption or satisfaction of the Indebtedness represented thereby
unless and until such Securities are surrendered to the Trustee for
cancellation.


 


Section 3.10
Computation of Interest. Except as otherwise specified pursuant to Section 3.01
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.


 


Section 3.11
Currency of Payments in Respect of Securities.


 


(a) Except as
otherwise specified pursuant to Section 3.01 for Securities of any series,
payment of the principal of and premium, if any, and interest on Securities of
such series will be made in U.S. Dollars.


 


17

















 


(b) For purposes of
any provision of the Indenture in which the Holders of Outstanding Securities
may perform an action that requires that a specified percentage of the
Outstanding Securities of all series perform such action and for purposes of
any decision or determination by the Trustee of amounts due and unpaid for the
principal of and premium, if any, and interest on the Securities of all series
in respect of which moneys are to be disbursed ratably, the principal of and
premium, if any, and interest on the Outstanding Securities denominated in a
Foreign Currency will be the amount in U.S. Dollars based upon exchange rates,
determined as specified pursuant to Section 3.01 for Securities of such
series, as of the date for determining whether the Holders entitled to perform
such action have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.


 


(c) Any decision or
determination to be made regarding exchange rates shall be made by an agent
appointed by the Company; provided, that such agent shall accept such
appointment in writing and the terms of such appointment shall, in the opinion
of the Company at the time of such appointment, require such agent to make such
determination by a method consistent with the method provided pursuant to Section 3.01
for the making of such decision or determination. All decisions and
determinations of such agent regarding exchange rates shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of the Securities.


 


Section 3.12
Judgments. The Company may provide pursuant to Section 3.01 for
Securities of any series that (a) the obligation, if any, of the Company
to pay the principal of, premium, if any, and interest on the Securities of any
series in a Foreign Currency or U.S. Dollars (the “Designated Currency”)
as may be specified pursuant to Section 3.01 is of the essence and agrees
that, to the fullest extent possible under applicable law, judgments in respect
of such Securities shall be given in the Designated Currency; (b) the
obligation of the Company to make payments in the Designated Currency of the
principal of and premium, if any, and interest on such Securities shall,
notwithstanding any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance with
normal banking procedures, purchase with the sum paid in such other Currency
(after any premium and cost of exchange) on the business day in the country of
issue of the Designated Currency or in the international banking community (in
the case of a composite currency) immediately following the day on which such
Holder receives such payment; (c) if the amount in the Designated Currency
that may be so purchased for any reason falls short of the amount originally
due, the Company shall pay such additional amounts as may be necessary to
compensate for such shortfall; and (d) any obligation of the Company not
discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.


 


Section 3.13
CUSIP Numbers. The Company in issuing any Securities may use CUSIP, ISIN
or other similar numbers, if then generally in use, and thereafter with respect
to such series, the Trustee may use such numbers in any notice of redemption or
exchange with respect to such series provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP, ISIN or other similar numbers.


 


ARTICLE IV


 


REDEMPTION OF SECURITIES


 


Section 4.01
Applicability of Right of Redemption. Redemption of Securities (other
than pursuant to a sinking fund, amortization or analogous provision) permitted
by the terms of any series of Securities shall be made (except as otherwise
specified pursuant to Section 3.01 for Securities of any series) in
accordance with this Article; provided, however, that if any such terms of a
series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.


 


Section 4.02
Selection of Securities to be Redeemed.


 


(a) If the Company
shall at any time elect to redeem all or any portion of the Securities of a
series then Outstanding, it shall at least 30 days prior to the Redemption Date
fixed by the Company (unless a shorter 


 


18

















 


period shall be satisfactory to the Trustee) notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed, and thereupon the Trustee shall select, by lot or in such other
manner as the Trustee shall deem appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Security
of such series; provided that the unredeemed portion of the principal amount of
any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. In any case where
more than one Security of such series is registered in the same name, the
Trustee may treat the aggregate principal amount so registered as if it were
represented by one Security of such series. The Trustee shall, as soon as
practicable, notify the Company in writing of the Securities and portions of
Securities so selected.


 


(b) For all purposes
of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.


 


Section 4.03
Notice of Redemption.


 


(a) Notice of
redemption shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company; provided, however, that
the Company makes such request at least 3 days prior to the date by which such
notice of redemption must be given to Holders in accordance with this Section 4.03;
provided further that, the text of such notice shall be prepared by the
Company.  Any such notice shall be
delivered in the manner provided in Section 16.04 not less than 30 days
before the Redemption Date unless the Trustee consents to a shorter period, to
the Holders of Securities of any series to be redeemed in whole or in part
pursuant to this Article. Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice. Failure
to give such notice, or any defect in such notice to the Holder of any Security
of a series designated for redemption, in whole or in part, shall not affect the
sufficiency of any notice of redemption with respect to the Holder of any other
Security of such series.


 


(b) All notices of
redemption shall identify the Securities to be redeemed (including CUSIP, ISIN
or other similar numbers, if available) and shall state:


 


(i) such election by
the Company to redeem Securities of such series pursuant to provisions
contained in this Indenture or the terms of the Securities of such series or a
supplemental indenture establishing such series, if such be the case;


 


(ii) the Redemption
Date;


 


(iii) the Redemption
Price;


 


(iv) if less than
all Outstanding Securities of any series are to be redeemed, the identification
(and, in the case of partial redemption, the principal amounts) of the
Securities of such series to be redeemed;


 


(v) that on the
Redemption Date the Redemption Price will become due and payable upon each such
Security to be redeemed, and that, if applicable, interest thereon shall cease
to accrue on and after said date;


 


(vi) the Place or
Places of Payment where such Securities are to be surrendered for payment of
the Redemption Price;


 


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


 


(viii) that the
Securities must be surrendered to the Paying Agent for payment of the
Redemption Price.


 


Section 4.04
Deposit of Redemption Price. On or prior to 11:00 a.m.,                     
time, on the Redemption Date for any Securities, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 6.03) an
amount of money in the Currency in which such Securities are denominated
(except as provided pursuant to Section 3.01) sufficient to pay the
Redemption Price of such Securities or any portions thereof that are to be
redeemed on that date.


 


Section 4.05
Securities Payable on Redemption Date. Notice of redemption having been
given as aforesaid, any Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price 


 


19

















 


and from and after such
date (unless the Company shall Default in the payment of the Redemption Price)
such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price; provided, however, that (unless
otherwise provided pursuant to Section 3.01) installments of interest that
have a Stated Maturity on or prior to the Redemption Date for such Securities
shall be payable according to the terms of such Securities and the provisions
of Section 3.08.


 


If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal thereof and premium, if any, thereon shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.


 


Section 4.06
Securities Redeemed in Part. Any Security that is to be redeemed only in
part shall be surrendered at the Corporate Trust Office or such other office or
agency of the Company as is specified pursuant to Section 3.01 with, if
the Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by the Holder thereof or his, her or
its attorney duly authorized in writing, and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered; except that if a Global
Security is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depositary for such Global Security, without
service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered. In the case of a Security providing appropriate space for such
notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion thereof.


 


ARTICLE V


 


SINKING FUNDS


 


Section 5.01
Applicability of Sinking Fund.


 


(a) Redemption of
Securities permitted or required pursuant to a sinking fund for the retirement
of Securities of a series by the terms of such series of Securities shall be
made in accordance with such terms of such series of Securities and this
Article, except as otherwise specified pursuant to Section 3.01 for
Securities of such series, provided, however, that if any such terms of a
series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.


 


(b) The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a “Mandatory Sinking Fund Payment,” and any
payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an “Optional Sinking Fund Payment.”
If provided for by the terms of Securities of any series, the cash amount of
any Mandatory Sinking Fund Payment may be subject to reduction as provided in Section 5.02.


 


Section 5.02
Mandatory Sinking Fund Obligation. The Company may, at its option,
satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part,
with respect to a particular series of Securities by (a) delivering to the
Trustee Securities of such series in transferable form theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.03 or (b) receiving credit for Securities of
such series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee. The Trustee shall credit such Mandatory Sinking
Fund Payment obligation with an amount equal to the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the
amount of such Mandatory Sinking Fund Payment shall be reduced accordingly. If
the Company shall elect to so satisfy any Mandatory Sinking Fund Payment
obligation, it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a written notice signed on behalf of the
Company by its Chairman of the Board of Directors, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, one of its Vice
Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore


 


20
















 


delivered) in
transferable form. In case of the failure of the Company, at or before the time
so required, to give such notice and deliver such Securities the Mandatory
Sinking Fund Payment obligation shall be paid entirely in moneys.


 


Section 5.03
Optional Redemption at Sinking Fund Redemption Price. In addition to the
sinking fund requirements of Section 5.02, to the extent, if any, provided
for by the terms of a particular series of Securities, the Company may, at its
option, make an Optional Sinking Fund Payment with respect to such Securities.
Unless otherwise provided by such terms, (a) to the extent that the right
of the Company to make such Optional Sinking Fund Payment shall not be
exercised in any year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate to reduce the
amount of any Mandatory Sinking Fund Payment obligation as to Securities of the
same series. If the Company intends to exercise its right to make such optional
payment in any year it shall deliver to the Trustee not less than 45 days prior
to the relevant sinking fund payment date a certificate signed by its Chairman
of the Board of Directors, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, one of its Vice Presidents, Treasurer or one
of its Assistant Treasurers stating that the Company will exercise such
optional right, and specifying the amount which the Company will pay on or
before the next succeeding sinking fund payment date. Such certificate shall
also state that no Event of Default has occurred and is continuing.


 


Section 5.04
Application of Sinking Fund Payment.


 


(a) If the sinking
fund payment or payments made in funds pursuant to either Section 5.02 or
5.03 with respect to a particular series of Securities plus any unused balance
of any preceding sinking fund payments made in funds with respect to such
series shall exceed $50,000 (or a lesser sum if the Company shall so request,
or such equivalent sum for Securities denominated other than in U.S. Dollars),
it shall be applied by the Trustee on the sinking fund payment date next
following the date of such payment, unless the date of such payment shall be a
sinking fund payment date, in which case such payment shall be applied on such
sinking fund payment date, to the redemption of Securities of such series at
the redemption price specified pursuant to Section 4.03(b). The Trustee
shall select, in the manner provided in Section 4.02, for redemption on
such sinking fund payment date, a sufficient principal amount of Securities of
such series to absorb said funds, as nearly as may be, and shall, at the
expense and in the name of the Company, thereupon cause notice of redemption of
the Securities to be given in substantially the manner provided in Section 4.03(a) for
the redemption of Securities in part at the option of the Company, except that
the notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so applied by the
Trustee to the redemption of Securities of such series shall be added to the
next sinking fund payment received in funds by the Trustee and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.04.
Any and all sinking fund moneys held by the Trustee on the last sinking fund
payment date with respect to Securities of such series, and not held for the
payment or redemption of particular Securities of such series, shall be applied
by the Trustee to the payment of the principal of the Securities of such series
at Maturity.


 


(b) On or prior to
each sinking fund payment date, the Company shall pay to the Trustee a sum
equal to all interest accrued to but not including the date fixed for
redemption on Securities to be redeemed on such sinking fund payment date
pursuant to this Section 5.04.


 


(c) The Trustee
shall not redeem any Securities of a series with sinking fund moneys or mail
any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) of which the Trustee has
actual knowledge, except that if the notice of redemption of any Securities of
such series shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee shall redeem such Securities if funds sufficient
for that purpose shall be deposited with the Trustee in accordance with the
terms of this Article. Except as aforesaid, any moneys in the sinking fund at
the time 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 held as security for the payment of all the
Securities of such series; provided, however, that in case such Default or
Event of Default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund payment date on
which such moneys are required to be applied pursuant to the provisions of this
Section 5.04.


 


21

















 


ARTICLE VI


 


PARTICULAR COVENANTS OF THE COMPANY


 


The
Company hereby covenants and agrees as follows:


 


Section 6.01
Payments of Securities. The Company will duly and punctually pay the
principal of and premium, if any, on each series of Securities, and the
interest which shall have accrued thereon, at the dates and place and in the
manner provided in the Securities and in this Indenture.


 


Section 6.02
Paying Agent.


 


(a) The Company will
maintain in each Place of Payment for any series of Securities, if any, an
office or agency where Securities may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served (the “Paying Agent”). The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as Paying Agent to receive
all presentations, surrenders, notices and demands.


 


(b) The Company may
also from time to time designate different or additional offices or agencies
where the Securities of any series may be presented or surrendered for any or
all such purposes (in or outside of such Place of Payment), and may from time
to time rescind any such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations described in the preceding paragraph. The Company will give prompt
written notice to the Trustee of any such additional designation or rescission
of designation and of any change in the location of any such different or
additional office or agency. The Company shall enter into an appropriate agency
agreement with any Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of each such agent.
The Company or any Affiliate thereof may act as Paying Agent.


 


Section 6.03
To Hold Payment in Trust.


 


(a) If the Company
or an Affiliate thereof shall at any time act as Paying Agent with respect to
any series of Securities, then, on or before the date on which the principal of
and premium, if any, or interest on any of the Securities of that series by
their terms or as a result of the calling thereof for redemption shall become
payable, the Company or such Affiliate will segregate and hold in trust for the
benefit of the Holders of such Securities or the Trustee a sum sufficient to
pay such principal and premium, if any, or interest which shall have so become
payable until such sums shall be paid to such Holders or otherwise disposed of
as herein provided, and will notify the Trustee of its action or failure to act
in that regard. Upon any proceeding under any federal bankruptcy laws with
respect to the Company or any Affiliate thereof, if the Company or such
Affiliate is then acting as Paying Agent, the Trustee shall replace the Company
or such Affiliate as Paying Agent.


 


(b) If the Company shall
appoint, and at the time have, a Paying Agent for the payment of the principal
of and premium, if any, or interest on any series of Securities, then prior to
11:00 a.m.,                     
time, on the date on which the principal of and premium, if any, or interest on
any of the Securities of that series shall become payable as aforesaid, whether
by their terms or as a result of the calling thereof for redemption, the
Company will deposit with such Paying Agent a sum sufficient to pay such
principal and premium, if any, or interest, such sum to be held in trust for
the benefit of the Holders of such Securities or the Trustee, and (unless such
Paying Agent is the Trustee), the Company or any other obligor of such
Securities will promptly notify the Trustee of its payment or failure to make
such payment.


 


(c) If the Paying
Agent shall be other than the Trustee, the Company will cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 6.03,
that such Paying Agent shall:


 


22

















 


(i) hold all moneys
held by it for the payment of the principal of and premium, if any, or interest
on the Securities of that series in trust for the benefit of the Holders of
such Securities until such sums shall be paid to such Holders or otherwise
disposed of as herein provided;


 


(ii) give to the
Trustee notice of any Default by the Company or any other obligor upon the
Securities of that series in the making of any payment of the principal of and
premium, if any, or interest on the Securities of that series; and


 


(iii) at any time
during the continuance of any such Default, upon the written request of the
Trustee, pay to the Trustee all sums so held in trust by such Paying Agent.


 


(d) Anything in this
Section 6.03 to the contrary notwithstanding, the Company may at any time,
for the purpose of obtaining a release, satisfaction or discharge of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or by any Paying Agent other than the Trustee
as required by this Section 6.03, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent.


 


(e) Subject to any
applicable abandoned property law, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest on any Security of any series and
remaining unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company upon Company
Order or (if then held by the Company) shall be discharged from such trust, and
the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment of such amounts without interest thereon,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in                     ,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.


 


Section 6.04
Merger, Consolidation and Sale of Assets. Except as otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities:


 


(a) The Company will
not consolidate with any other entity or accept a merger of any other entity
into the Company or permit the Company to be merged into any other entity, or
sell other than for cash or lease all or substantially all its assets to
another entity, or purchase all or substantially all the assets of another
entity, unless (i) either the Company shall be the continuing entity, or (ii) the
successor, transferee or lessee entity (if other than the Company) shall
expressly assume, by indenture supplemental hereto, executed and delivered by
such entity prior to or simultaneously with such consolidation, merger, sale or
lease, the due and punctual payment of the principal of and interest and
premium, if any, on all the Securities, according to their tenor, and the due
and punctual performance and observance of all other obligations to the Holders
and the Trustee under this Indenture or under the Securities to be performed or
observed by the Company.  A purchase by a
Subsidiary of all or substantially all of the assets of another entity shall
not be deemed to be a purchase of such assets by the Company.


 


(b) Upon any
consolidation with or merger into any other entity, or any sale other than for
cash, or any conveyance or lease of all or substantially all of the assets of
the Company in accordance with this Section 6.04, the successor entity
formed by such consolidation or into or with which the Company is merged or to
which the Company is sold or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor entity had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Company shall be relieved of all
obligations and covenants under this Indenture and the Securities, and from
time to time such entity may exercise each and every right and power of the
Company under this Indenture, in the name of the Company, or in its own name;
and any act or proceeding by any provision of this Indenture required or
permitted to be done by the Board of Directors or any officer of the Company
may be done with like force and effect by the like board or officer of any
entity that shall at the time be the successor of the Company hereunder. In the
event of any such sale or conveyance, but not any such lease, the Company (or
any successor entity which shall theretofore have become such in the 


 


23

















 


manner described in this Section 6.04)
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may thereupon be dissolved and liquidated.


 


Section 6.05
Compliance Certificate. Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, the Company shall furnish to the
Trustee annually, within 120 days after the end of each fiscal year, a brief
certificate from the Chief Executive Officer, President, Chief Operating
Officer, Principal Financial Officer, Principal Accounting Officer, any Vice
President or Treasurer as to his or her knowledge of the Company’s compliance
with all conditions and covenants under this Indenture (which compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture) and, in the event of any Default, specifying
each such Default and the nature and status thereof of which such person may
have knowledge. Such certificates need not comply with Section 16.01 of
this Indenture.


 


Section 6.06
Conditional Waiver by Holders of Securities. Anything in this Indenture
to the contrary notwithstanding, the Company may fail or omit in any particular
instance to comply with a covenant or condition set forth herein with respect
to any series of Securities if the Company shall have obtained and filed with
the Trustee, prior to the time of such failure or omission, evidence (as
provided in Article VIII) of the consent of the Holders of a majority in
aggregate principal amount of the Securities of such series at the time
Outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly
waived, or impair any right consequent thereon and, until such waiver shall
have become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.


 


Section 6.07
Statement by Officers as to Default. The Company shall deliver to the
Trustee as soon as possible and in any event within 30 days after the Company
becomes aware of the occurrence of any Event of Default or an event which, with
the giving of notice or the lapse of time or both, would constitute an Event of
Default, an Officer’s Certificate setting forth the details of such Event of
Default or Default and the action which the Company proposes to take with
respect thereto.


 


ARTICLE VII


 


REMEDIES OF TRUSTEE AND
SECURITYHOLDERS


 


Section 7.01
Events of Default. Except where otherwise indicated by the context or
where the term is otherwise defined for a specific purpose, the term “Event of Default” as
used in this Indenture with respect to Securities of any series shall mean one
of the following described events unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the manner
contemplated in Section 3.01:


 


(a) the failure of
the Company to pay any installment of interest on any Security of such series
when and as the same shall become payable, which failure shall have continued
unremedied for a period of 90 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of
any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;


 


(b) the failure of
the Company to pay the principal of (and premium, if any, on) any Security of
such series, when and as the same shall become payable, whether at Maturity as
therein expressed, by call for redemption (otherwise than pursuant to a sinking
fund), by declaration as authorized by this Indenture or otherwise;


 


(c) the failure of
the Company to pay a sinking fund installment, if any, when and as the same
shall become payable by the terms of a Security of such series, which failure
shall have continued unremedied for a period of 30 days;


 


(d) the failure of
the Company, subject to the provisions of Section 6.06, to perform any
covenants or agreements contained in this Indenture (including any indenture
supplemental hereto pursuant to which the Securities of such series were issued
as contemplated by Section 3.01) (other than a covenant or agreement which
has been expressly included in this Indenture solely for the benefit of a
series of Securities other than that series and other than a covenant or
agreement a default in the performance of which is elsewhere in this Section 7.01
specifically addressed), which failure shall not have been remedied, or without
provision deemed 


 


24

















 


to be adequate for the remedying thereof having been
made, for a period of 90 days after written notice shall have been given to the
Company by the Trustee or shall have been given to the Company and the Trustee
by Holders of not less than a majority in aggregate principal amount of the
Securities of such series then Outstanding, specifying such failure, requiring
the Company to remedy the same and stating that such notice is a “Notice of Default”
hereunder;


 


(e) the entry by a
court having jurisdiction in the premises of a decree or order for relief in
respect of the Company in an involuntary case under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or of substantially all the property of
the Company or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90 consecutive
days;


 


(f) the commencement
by the Company of a voluntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
the Company to the entry of an order for relief in an involuntary case under
any such law, or the consent by the Company to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company or of substantially all the
property of the Company or the making by it of an assignment for the benefit of
creditors or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any action; or


 


(g) the occurrence
of any other Event of Default with respect to Securities of such series as
provided in Section 3.01;


 


provided, however, that
no event described in clause (d) or (other than with respect to a payment
default) (g) above shall constitute an Event of Default hereunder until a
Responsible Officer assigned to and working in the Trustee’s corporate trust
department has actual knowledge thereof or until a written notice of any such
event is received by the Trustee at the Corporate Trust Office, and such notice
refers to the facts underlying such event, the Securities generally, the
Company and the Indenture. Notwithstanding the foregoing provisions of this Section 7.01,
if the principal or any premium or interest on any Security is payable in a
Currency other than the Currency of the United States and such Currency is not
available to the Company for making payment thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company, the
Company will be entitled to satisfy its obligations to Holders of the
Securities by making such payment in the Currency of the United States in an
amount equal to the Currency of the United States equivalent of the amount
payable in such other Currency, as determined by the Company by reference to
the noon buying rate in                     
for cable transfers for such Currency (“Exchange Rate”), as such Exchange Rate is
reported or otherwise made available by the Federal Reserve Bank of New York on
the date of such payment, or, if such rate is not then available, on the basis
of the most recently available Exchange Rate. Notwithstanding the foregoing
provisions of this Section 7.01, any payment made under such circumstances
in the Currency of the United States where the required payment is in a
Currency other than the Currency of the United States will not constitute an
Event of Default under this Indenture.


 


Section 7.02
Acceleration; Rescission and Annulment.


 


(a) Except as
otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, if any one or more of the above-described Events of
Default (other than an Event of Default specified in Section 7.01(e) or
7.01(f)) shall happen with respect to Securities of any series at the time
Outstanding, then, and in each and every such case, during the continuance of
any such Event of Default, the Trustee or the Holders of not less than a
majority in principal amount of the Securities of such series then Outstanding
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of and all accrued but unpaid interest
on all the Securities of such series then Outstanding to be due and payable
immediately by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 7.01(e) or 7.01(f) occurs and is
continuing, then in every such case, the principal amount of all of the
Securities of that series then Outstanding shall automatically, and without any
declaration or any other action on the part of the Trustee or any Holder,
become due and payable immediately. Upon payment of such amounts in the
Currency in which such Securities are denominated 


 


25

















 


(subject to Section 7.01 and except as otherwise
provided pursuant to Section 3.01), all obligations of the Company in
respect of the payment of principal of and interest on the Securities of such
series shall terminate.


 


(b) The provisions
of Section 7.02(a), however, are subject to the condition that, at any
time after the principal of all the Securities of such series, to which any one
or more of the above-described Events of Default is applicable, shall have been
so declared to be due and payable, and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter provided in
this Article, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and
such declaration and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if:


 


(i) the Company has
paid or deposited with the Trustee or Paying Agent a sum in the Currency in
which such Securities are denominated (subject to Section 7.01 and except
as otherwise provided pursuant to Section 3.01) sufficient to pay


 


(A) all amounts
owing the Trustee and any predecessor trustee hereunder under Section 11.01(a) (provided,
however, that all sums payable under this clause (A) shall be paid in U.S.
Dollars);


 


(B) all arrears of
interest, if any, upon all the Securities of such series (with interest, to the
extent that interest thereon shall be legally enforceable, on any overdue
installment of interest at the rate borne by such Securities at the rate or
rates prescribed therefor in such Securities); and


 


(C) the principal of
and premium, if any, on any Securities of such series that have become due
otherwise than by such declaration of acceleration and interest thereon; and


 


(ii) every other
Default and Event of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, has been cured or waived
as provided in Section 7.06.


 


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


 


(d) 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 7.03
Other Remedies. If the Company shall fail for a period of 30 days to pay
any installment of interest on the Securities of any series or shall fail to
pay the principal of and premium, if any, on any of the Securities of such
series when and as the same shall become due and payable, whether at Maturity,
or by call for redemption (other than pursuant to the sinking fund), by
declaration as authorized by this Indenture, or otherwise, or shall fail for a
period of 30 days to make any required sinking fund payment as to a series of
Securities, then, upon demand of the Trustee, the Company will pay to the
Paying Agent for the benefit of the Holders of Securities of such series then
Outstanding the whole amount which then shall have become due and payable on
all the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a).


 


In
case the Company 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 proceeding at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Securities of
such series, and collect the moneys adjudged or decreed to be payable out of
the property of the Company or any other obligor upon the Securities of such
series, wherever situated, in the manner provided by law. Every recovery of
judgment in any such action or other proceeding, subject to the payment to the
Trustee of all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a), shall be for 


 


26

















 


the ratable benefit of
the Holders of such series of Securities which shall be the subject of such
action or proceeding. All rights of action upon or under any of the Securities
or this Indenture may be enforced by the Trustee without the possession of any
of the Securities and without the production of any thereof at any trial or any
proceeding relative thereto.


 


Section 7.04
Trustee as Attorney-in-Fact. The Trustee is hereby appointed, and each
and every Holder of the Securities, by receiving and holding the same, shall be
conclusively deemed to have appointed the Trustee, the true and lawful
attorney-in-fact of such Holder, with authority to make or file (whether or not
the Company shall be in Default in respect of the payment of the principal of,
or interest on, any of the Securities), in its own name and as trustee of an
express trust or otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
to their respective creditors or property, any and all claims, proofs of claim,
proofs of debt, petitions, consents, other papers and documents and amendments
of any thereof, as may be necessary or advisable in order to have the claims of
the Trustee and any predecessor trustee hereunder and of the Holders of the
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all
other acts and things, as it may deem necessary or advisable in order to
enforce in any such proceeding any of the claims of the Trustee and any
predecessor trustee hereunder and of any of such Holders in respect of any of
the Securities; and any receiver, assignee, trustee, custodian or debtor in any
such proceeding is hereby authorized, and each and every taker or Holder of the
Securities, by receiving and holding the same, shall be conclusively deemed to
have authorized any such receiver, assignee, trustee, custodian or debtor, to
make any such payment or delivery only to or on the order of the Trustee, and
to pay to the Trustee any amount due it and any predecessor trustee hereunder
under Section 11.01(a); provided, however, that nothing herein contained
shall be deemed to authorize or empower the Trustee to consent to or accept or
adopt, on behalf of any Holder of Securities, any plan of reorganization or
readjustment affecting the Securities or the rights of any Holder thereof, or
to authorize or empower the Trustee to vote in respect of the claim of any
Holder of any Securities in any such proceeding.


 


Section 7.05
Priorities. Any moneys or properties collected by the Trustee with
respect to a series of Securities under this Article VII shall be applied
in the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys or properties and, in the case of the distribution
of such moneys or properties on account of the Securities of any series, upon
presentation of the Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:


 


First: To the payment of
all amounts due to the Trustee and any predecessor trustee hereunder under Section 11.01(a).


 


Second: In case the
principal of the Outstanding Securities of such series shall not have become
due and be unpaid, to the payment of interest on the Securities of such series,
in the chronological 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 rate borne by
such Securities, such payments to be made ratably to the Persons entitled
thereto.


 


Third: In case the
principal of the Outstanding Securities of such series shall have become due,
by declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and premium, if any,
and interest, with interest on the overdue principal and premium, if any, and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by the Securities of such
series, and in case such moneys shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Securities of such series, then to the
payment of such principal and premium, if any, and interest without preference
or priority of principal and premium, if any, over interest, or of interest
over principal and premium, if any, 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
premium, if any, and accrued and unpaid interest.


 


Any surplus then
remaining shall be paid to the Company or as directed by a court of competent
jurisdiction.


 


Section 7.06
Control by Securityholders; Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities of any series at the time
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee hereunder, or of exercising any trust
or power hereby conferred upon the Trustee with respect to the Securities of such
series, provided, however, that, subject to the 


 


27

















 


provisions of Sections
11.01 and 11.02, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines in good faith that
the action so directed may not lawfully be taken or would be unduly prejudicial
to Holders not joining in such direction or would involve the Trustee in
personal liability. Prior to any declaration accelerating the Maturity of the
Securities of any series, the Holders of a majority in aggregate principal
amount of such series of Securities at the time Outstanding may on behalf of
the Holders of all of the Securities of such series waive any past Default or
Event of Default hereunder and its consequences except a Default in the payment
of interest or any premium on or the principal of the Securities of such
series. Upon any such waiver the Company, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall have been
waived as permitted by this Section 7.06, said Default or Event of Default
shall for all purposes of the Securities of such series and this Indenture be
deemed to have been cured and to be not continuing.


 


Section 7.07
Limitation on Suits. No Holder of any Security of any series shall have
any right to institute any action, suit or proceeding at law or in equity for
the execution of any trust hereunder or for the appointment of a receiver or
for any other remedy hereunder, in each case with respect to an Event of
Default with respect to such series of Securities, unless such Holder
previously shall have given to the Trustee written notice of one or more of the
Events of Default herein specified with respect to such series of Securities,
and unless also the Holders of not less than a majority in principal amount of
the Securities of such series then Outstanding shall have requested the Trustee
in writing to take action in respect of the matter complained of, and unless
also there shall have been offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 60 days after receipt of such
notification, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding; and such notification,
request and offer of indemnity are hereby declared in every such case to be
conditions precedent to any such action, suit or proceeding by any Holder of
any Security of such series; it being understood and intended that no one or
more of the Holders of Securities of such series shall have any right in any
manner whatsoever by his, her, its or their action to enforce any right
hereunder, except in the manner herein provided, and that every action, suit or
proceeding at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of all Holders of the
Outstanding Securities of such series; provided, however, that nothing in this
Indenture or in the Securities of such series shall affect or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on the Securities of such series to
the respective Holders of such Securities at the respective due dates in such
Securities stated, or affect or impair the right, which is also absolute and
unconditional, of such Holders to institute suit to enforce the payment
thereof.


 


Section 7.08
Undertaking for Costs. All parties to this Indenture and each Holder of
any Security, by such Holder’s acceptance thereof, shall be deemed to have
agreed that any court may in its discretion require, in any action, suit or
proceeding for the enforcement of any right or remedy under this Indenture, or
in any action, suit or proceeding against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such action, suit
or proceeding of an undertaking to pay the costs of such action, suit or
proceeding, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in such action, suit or proceeding, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; provided, however,
that the provisions of this Section 7.08 shall not apply to any action,
suit or proceeding instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more Holders of Securities holding in the aggregate
more than 10% in principal amount of the Securities of any series Outstanding,
or to any action, suit or proceeding instituted by any Holder of Securities of
any series for the enforcement of the payment of the principal of or premium,
if any, or the interest on, any of the Securities of such series, on or after
the respective due dates expressed in such Securities.


 


Section 7.09
Remedies Cumulative. No remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities of any series is intended to be
exclusive of any other remedy or remedies, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute. No delay or
omission of the Trustee or of any Holder of the Securities of any series to
exercise any right or power accruing upon any Default or Event of Default shall
impair any such right or power or shall be construed to be a waiver of any such
Default or Event of Default or an acquiescence therein; and every power and
remedy given by this Article VII to the Trustee and to the Holders of
Securities of any series, respectively, may be exercised from time to time and
as often as may be deemed expedient by the Trustee or by the 


 


28

















 


Holders of Securities of
such series, as the case may be. In case the Trustee or any Holder of
Securities of any series shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such Holder of Securities,
then and in every such case the Company, the Trustee and the Holders of the
Securities of such series shall severally and respectively be restored to their
former positions and rights hereunder, and thereafter all rights, remedies and
powers of the Trustee and the Holders of the Securities of such series shall
continue as though no such proceedings had been taken, except as to any matters
so waived or adjudicated.


 


ARTICLE VIII


 


CONCERNING THE SECURITYHOLDERS


 


Section 8.01
Evidence of Action of Securityholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage or a majority in aggregate
principal amount of the Securities or of any series of Securities may take any
action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the Holders of such specified percentage or
majority have joined therein may be evidenced by (a) any instrument or any
number of instruments of similar tenor executed by Securityholders in person,
by an agent or by a proxy appointed in writing, including through an electronic
system for tabulating consents operated by the Depositary for such series or
otherwise (such action becoming effective, except as herein otherwise expressly
provided, when such instruments or evidence of electronic consents are
delivered to the Trustee and, where it is hereby expressly required, to the
Company), or (b) by the record of the Holders of Securities voting in
favor thereof at any meeting of Securityholders duly called and held in
accordance with the provisions of Article IX, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Securityholders.


 


Section 8.02
Proof of Execution or Holding of Securities. Proof of the execution of
any instrument by a Securityholder or his, her or its agent or proxy and proof
of the holding by any Person of any of the Securities shall be sufficient if
made in the following manner:


 


(a) The fact and
date of the execution by any Person of any such instrument may be proved (i) by
the certificate of any notary public or other officer in any jurisdiction who,
by the laws thereof, has power to take acknowledgments or proof of deeds to be
recorded within such jurisdiction, that the Person who signed such instrument
did acknowledge before such notary public or other officer the execution
thereof, (ii) by the affidavit of a witness of such execution sworn to
before any such notary or other officer or (iii) in such other reasonable manner
acceptable to the Trustee. Where such execution is by a Person acting in other
than his or her individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her authority.


 


(b) The ownership of
Securities of any series shall be proved by the Register of such Securities or
by a certificate of the Registrar for such series.


 


(c) The record of
any Holders’ meeting shall be proved in the manner provided in Section 9.06.


 


(d) The Trustee may
require such additional proof of any matter referred to in this Section 8.02
as it shall deem appropriate or necessary, so long as the request is a
reasonable one.


 


(e) If the Company
shall solicit from the Holders of Securities of any series any action, the
Company may, at its option fix in advance a record date for the determination
of Holders of Securities entitled to take such action, but the Company shall
have no obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Securities of record
at the close of business on such record date shall be deemed to be Holders of
Securities for the purpose of determining whether Holders of the requisite
proportion of Outstanding Securities of such series have authorized or agreed
or consented to such action, and for that purpose the Outstanding Securities of
such series shall be computed as of such record date.


 


Section 8.03
Persons Deemed Owners.


 


(a) The Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of 


 


29

















 


principal of and premium, if any, and (subject to Section 3.08)
interest, if any, on, such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. All payments made to any Holder, or upon his, her or its order, shall
be valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Security.


 


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


 


Section 8.04
Effect of Consents. After an amendment, supplement, waiver or other
action becomes effective as to any series of Securities, a consent to it by a
Holder of such series of Securities is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Securities or
portion thereof, and of any Security issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Security. An amendment, supplement or waiver becomes effective
in accordance with its terms and thereafter binds every Holder.


 


ARTICLE IX


 


SECURITYHOLDERS’ MEETINGS


 


Section 9.01
Purposes of Meetings. A meeting of Securityholders of any or all series
may be called at any time and from time to time pursuant to the provisions of
this Article IX for any of the following purposes:


 


(a) to give any
notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any Default or Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article VIII;


 


(b) to remove the
Trustee and nominate a successor trustee pursuant to the provisions of Article XI;


 


(c) to consent to
the execution of an Indenture or of indentures supplemental hereto pursuant to
the provisions of Section 14.02; or


 


(d) to take any
other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Securities of any one or more or
all series, as the case may be, under any other provision of this Indenture or
under applicable law.


 


Section 9.02
Call of Meetings by Trustee. The Trustee may at any time call a meeting
of all Securityholders of all series that may be affected by the action
proposed to be taken, to take any action specified in Section 9.01, to be
held at such time and at such place in New York, New York or in Atlanta,
Georgia. Notice of every meeting of the Securityholders of a series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to Holders of Securities
of such series at their addresses as they shall appear on the Register of the
Company. Such notice shall be mailed not less than 20 nor more than 180 days
prior to the date fixed for the meeting.


 


Section 9.03
Call of Meetings by Company or Securityholders. In case at any time the
Company or the Holders of at least 10% in aggregate principal amount of the
Securities of a series (or of all series, as the case may be) then Outstanding
that may be affected by the action proposed to be taken, shall have requested
the Trustee to call a meeting of Securityholders of such series (or of all
series), by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 9.01,
by mailing notice thereof as provided in Section 9.02.


 


Section 9.04
Qualifications for Voting. To be entitled to vote at any meeting of
Securityholders, a Person shall (a) be a Holder of one or more Securities
affected by the action proposed to be taken at the meeting or (b) be a
Person appointed by an instrument in writing as proxy by a Holder of one or
more such Securities. The only Persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the Persons entitled to
vote


 


30
















 


at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 9.05
Regulation of Meetings.


 


(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem fit.


 


(b) The Trustee
shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 9.03, in which case the Company or
the Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chair. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.


 


(c) At any meeting
of Securityholders of a series, each Securityholder of such series of such
Securityholder’s proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series Outstanding held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
her or instruments in writing as aforesaid duly designating him or her as the
Person to vote on behalf of other Securityholders. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 9.02 or
9.03 the presence of Persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum, and any such meeting may be adjourned from time to time by a majority
of those present, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice. 
In the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of holders of
Securities of such series, be dissolved.  
In any other case, the meeting may be adjourned for a period determined
by the chairman of the meeting prior to the adjournment of such meeting. 
In the absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting.  Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 9.02 hereof,
except that such notice need be given only once and not less than five days
prior to the date on which the meeting is scheduled to be reconvened.


 


Section 9.06
Voting. The vote upon any resolution submitted to any meeting of
Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in Section 9.02.
The record shall show the principal amounts of the Securities voting in favor
of or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.


 


Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.


 


Section 9.07
No Delay of Rights by Meeting. Nothing contained in this Article IX
shall be deemed or construed to authorize or permit, by reason of any call of a
meeting of Securityholders of any series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Securityholders of such series under any of the provisions of this Indenture or
of the Securities of such series.


 


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ARTICLE X


 


REPORTS BY THE COMPANY AND THE
TRUSTEE AND


 


SECURITYHOLDERS’ LISTS


 


Section 10.01
Reports by Trustee.


 


(a) So long as any
Securities are outstanding, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
therein.


 


(b) The Trustee
shall, at the time of the transmission to the Holders of Securities of any
report pursuant to the provisions of this Section 10.01, file a copy of
such report with each stock exchange upon which the Securities are listed, if
any, and also with the SEC in respect of a Security listed and registered on a
national securities exchange, if any. The Company agrees to notify the Trustee
when, as and if the Securities become listed on any stock exchange.


 


The
Company will reimburse the Trustee for all expenses incurred in the preparation
and transmission of any report pursuant to the provisions of this Section 10.01
and of Section 10.02.


 


Section 10.02
Reports by the Company. The Company shall file with the Trustee and the
SEC, and transmit to Holders, such information, documents and other reports,
and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided in the Trust Indenture Act;
provided that, unless available on EDGAR, any such information, documents or
reports required to be filed with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed with the Trustee within 30 days after the same
is filed with the SEC; and provided further, that the filing of the reports
specified in Section 13 or 15(d) of the Exchange Act by an entity
that is the direct or indirect parent of the Company will satisfy the
requirements of this Section 10.02 so long as such entity is an obligor or
guarantor on the Securities; and provided further that the reports of such
entity will not be required to include condensed consolidating financial
information for the Company in a footnote to the financial statements of such
entity.  Notwithstanding the foregoing,
the Company shall not be required to deliver to the Trustee any information or
documents for which the Company has requested and received confidential
treatment by the SEC.


 


Section 10.03
Securityholders’ Lists. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee:


 


(a) semi-annually,
within 15 days after each Record Date, but in any event not less frequently
than semi-annually, a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders of Securities to which such Record Date
applies, as of such Record Date, and


 


(b) at such other
times as the Trustee may request in writing, within 30 days after receipt by
the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Trustee shall be the Registrar, such lists shall
not be required to be furnished.


 


ARTICLE XI


 


CONCERNING THE TRUSTEE


 


Section 11.01
Rights of Trustees; Compensation and Indemnity. The Trustee accepts the
trusts created by this Indenture upon the terms and conditions hereof,
including the following, to all of which the parties hereto and the Holders
from time to time of the Securities agree:


 


(a) The Trustee
shall be entitled to such compensation as the Company and the Trustee shall
from time to time agree in writing for all services rendered by it hereunder
(including in any agent capacity in which it acts). The compensation of the
Trustee shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the 


 


32

















 


Trustee (including the reasonable expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith or willful
misconduct.


 


The
Company also agrees to indemnify each of the Trustee and any predecessor
Trustee hereunder for, and to hold it harmless against, any and all loss,
liability, damage, claim, or expense incurred without its own negligence, bad
faith or willful misconduct, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder and the
performance of its duties (including in any agent capacity in which it acts),
as well as the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except those attributable to its negligence, willful
misconduct or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have one separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.


 


As
security for the performance of the obligations of the Company under this Section 11.01(a),
the Trustee shall have a lien upon all property and funds held or collected by
the Trustee as such, except funds held in trust by the Trustee to pay principal
of and interest on any Securities. Notwithstanding any provisions of this
Indenture to the contrary, the obligations of the Company to compensate and
indemnify the Trustee under this Section 11.01(a) shall survive the
resignation or removal of the Trustee and any satisfaction and discharge under Article XII.
When the Trustee incurs expenses or renders services after an Event of Default
specified in clause (e) or (f) of Section 7.01 occurs, the
expenses and compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency
or similar laws.


 


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


 


(c) The Trustee
shall not be responsible in any manner whatsoever for the correctness of the
recitals herein or in the Securities (except its certificates of authentication
thereon) contained, all of which are made solely by the Company; and the
Trustee shall not be responsible or accountable in any manner whatsoever for or
with respect to the validity or execution or sufficiency of this Indenture or
of the Securities (except its certificates of authentication thereon), and the
Trustee makes no representation with respect thereto, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Company of any Securities, or the proceeds of any Securities, authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.


 


(d) The Trustee may
consult with counsel of its selection, and, to the extent permitted by Section 11.02,
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by the Trustee hereunder in good
faith and in accordance with such Opinion of Counsel.


 


(e) The Trustee, to
the extent permitted by Section 11.02, may rely upon the certificate of
the Secretary or one of the Assistant Secretaries of the Company as to the
adoption of any Board Resolution or resolution of the stockholders of the
Company, and any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by, and whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action hereunder, the
Trustee may rely upon, an Officer’s Certificate of the Company (unless other
evidence in respect thereof be herein specifically prescribed).


 


(f) Subject to Section 11.04,
the Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company with the same rights it would have had if it were not the Trustee
or such agent.


 


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


 


33

















 


(h) Any action taken
by the Trustee pursuant to any provision hereof at the request or with the
consent of any Person who at the time is the Holder of any Security shall be
conclusive and binding in respect of such Security upon all future Holders
thereof or of any Security or Securities which may be issued for or in lieu
thereof in whole or in part, whether or not such Security shall have noted
thereon the fact that such request or consent had been made or given.


 


(i) Subject to the
provisions of Section 11.02, the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties.


 


(j) Subject to the
provisions of Section 11.02, the Trustee shall not be under any obligation
to exercise any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders of the Securities, pursuant
to any provision of this Indenture, unless one or more of the Holders of the
Securities shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred by it
therein or thereby.


 


(k) Subject to the
provisions of Section 11.02, 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 its discretion or within the rights or powers conferred upon it by this
Indenture.


 


(l) Subject to the
provisions of Section 11.02, the Trustee shall not be deemed to have
knowledge or notice of any Default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless the Holders of
not less than 25% of the Outstanding Securities notify the Trustee thereof.


 


(m) Subject to the
provisions of the first paragraph of Section 11.02, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
Indebtedness or other paper or document, but the Trustee, may, but shall not be
required to, make further inquiry or investigation into such facts or matters
as it may see fit.


 


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


 


Section 11.02
Duties of Trustee.


 


(a) If one or more
of the Events of Default specified in Section 7.01 with respect to the
Securities of any series shall have happened, then, during the continuance
thereof, the Trustee shall, with respect to such Securities, exercise such of
the rights and powers vested in it by this Indenture, and shall use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs.


 


(b) None of the
provisions of this Indenture shall be construed as relieving the Trustee from
liability for its own negligent action, its own negligent action, negligent
failure to act, or its own willful misconduct, except that, anything in this
Indenture contained to the contrary notwithstanding,


 


(i) unless and until
an Event of Default specified in Section 7.01 with respect to the
Securities of any series shall have happened which at the time is continuing,


 


(A) the Trustee
undertakes to perform such duties and only such duties with respect to the
Securities of that series as are specifically set out in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee, whose duties and obligations shall be determined solely by the express
provisions of this Indenture; and


 


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


 


34

















 


need not confirm or investigate the accuracy of
mathematical calculations or other facts, statements, opinions or conclusions
stated therein);


 


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


 


(iii) the Trustee
shall not be liable to any Holder of Securities or to any other Person with
respect to any action taken or omitted to be taken by it in good faith, in
accordance with the direction of Securityholders given as provided in Section 7.06,
relating to the time, method and place of conducting any proceeding for any
remedy available to it or exercising any trust or power conferred upon it by
this Indenture.


 


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


 


(d) Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 11.02.


 


Section 11.03
Notice of Defaults. Within 90 days after the occurrence thereof, and if
known to the Trustee, the Trustee shall give to the Holders of the Securities
of a series notice of each Default or Event of Default with respect to the
Securities of such series known to the Trustee, by transmitting such notice to
Holders at their addresses as the same shall then appear on the Register of the
Company, unless such Default shall have been cured or waived before the giving
of such notice (the term “Default”
being hereby defined to be the events specified in Section 7.01, which
are, or after notice or lapse of time or both would become, Events of Default
as defined in said Section). Except in the case of a Default or Event of
Default in payment of the principal of, premium, if any, or interest on any of
the Securities of such series when and as the same shall become payable, or to
make any sinking fund payment as to Securities of the same series, the Trustee
shall be protected in withholding such notice, if and so long as a Responsible
Officer or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities of such series.


 


Section 11.04
Eligibility; Disqualification.


 


(a) The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $50 million as
set forth in its most recent published annual report of condition, and shall
have a Corporate Trust Office. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 11.04, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.


 


(b) The Trustee
shall comply with TIA Section 310(b); provided, however, that there shall
be excluded from the operation of TIA Section 310(b)(i) any indenture
or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(i) are
met. If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. If Section 310(b) of the Trust Indenture Act is amended
any time after the date of this Indenture to change the circumstances under
which a Trustee shall be deemed to have a conflicting interest with respect to
the Securities of any series or to change any of the definitions in connection
therewith, this Section 11.04 shall be automatically amended to
incorporate such changes.


 


Section 11.05
Registration and Notice; Removal. The Trustee, or any successor to it
hereafter appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of Securities by
giving to the Company notice in writing. Such resignation shall take effect
upon the appointment of a successor Trustee and the acceptance of such
appointment by such successor Trustee. Any Trustee hereunder may be removed
with respect to any series of Securities at any time by the filing with such
Trustee and the delivery to the Company of an instrument or instruments in
writing signed by the Holders of a majority in principal amount of the
Securities of such series then Outstanding, specifying such removal and the
date when it shall become effective.


 


35

















 


If at
any time:


 


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


 


(2) the
Trustee shall cease to be eligible under Section 11.04 and shall fail to
resign after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or


 


(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by written notice to
the Trustee may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Securityholder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.


 


Upon
its resignation or removal, any Trustee shall be entitled to the payment of
reasonable compensation for the services rendered hereunder by such Trustee and
to the payment of all reasonable expenses incurred hereunder and all moneys
then due to it hereunder. The Trustee’s rights to indemnification provided in Section 11.01(a) shall
survive its resignation or removal.


 


Section 11.06
Successor Trustee by Appointment.


 


(a) In case at any
time the Trustee shall resign, or shall be removed (unless the Trustee shall be
removed as provided in Section 11.04(b), in which event the vacancy shall
be filled as provided in said subdivision), or shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or if a receiver of the
Trustee or of its property shall be appointed, or if 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 with respect to the
Securities of one or more series, a successor Trustee with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee with
respect to the Securities of any series) may be appointed by the Holders of a
majority in principal amount of the Securities of that or those series then
Outstanding, by an instrument or instruments in writing signed in duplicate by
such Holders and filed, one original thereof with the Company and the other
with the successor Trustee; but, until a successor Trustee shall have been so
appointed by the Holders of Securities of that or those series as herein
authorized, the Company, or, in case all or substantially all the assets of the
Company shall be in the possession of one or more custodians or receivers
lawfully appointed, or of trustees in bankruptcy or reorganization proceedings
(including a trustee or trustees appointed under the provisions of the federal
bankruptcy laws, as now or hereafter constituted), or of assignees for the
benefit of creditors, such receivers, custodians, trustees or assignees, as the
case may be, by an instrument in writing, shall appoint a successor Trustee
with respect to the Securities of such series. Subject to the provisions of
Sections 11.04 and 11.05, upon the appointment as aforesaid of a successor
Trustee with respect to the Securities of any series, the Trustee with respect
to the Securities of such series shall cease to be Trustee hereunder. After any
such appointment other than by the Holders of Securities of that or those
series, the Person making such appointment shall forthwith cause notice thereof
to be mailed to the Holders of Securities of such series at their addresses as
the same shall then appear on the Register of the Company but any successor
Trustee with respect to the Securities of such series so appointed shall,
immediately and without further act, be superseded by a successor Trustee
appointed by the Holders of Securities of such series in the manner above
prescribed, if such appointment be made prior to the expiration of one year
from the date of the mailing of such notice by the Company, or by such receivers,
trustees or assignees.


 


(b) If any Trustee
with respect to the Securities of one or more series shall resign or be removed
and a successor Trustee shall not have been appointed by the Company or by the
Holders of the Securities of such series or, if any successor Trustee so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee at the expense of the
Company may apply to any court of competent jurisdiction for the appointment of
a successor Trustee. If in any other case a successor Trustee shall not be
appointed pursuant to the foregoing provisions of this Section 11.06
within three months after such appointment might have been made hereunder, the
Holder of any Security of the applicable series or 


 


36

















 


any retiring Trustee at the expense of the Company may
apply to any court of competent jurisdiction to appoint a successor Trustee.
Such court may thereupon, in any such case, after such notice, if any, as such
court may deem proper and prescribe, appoint a successor Trustee.


 


(c) Any successor
Trustee appointed hereunder with respect to the Securities of one or more
series shall execute, acknowledge and deliver to its predecessor Trustee and to
the Company, or to the receivers, trustees, assignees or court appointing it,
as the case may be, an instrument accepting such appointment hereunder, and
thereupon such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations with respect to such series of such predecessor Trustee
with like effect as if originally named as Trustee hereunder, and such
predecessor Trustee, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to pay over, and such successor Trustee shall
be entitled to receive, all moneys and properties held by such predecessor
Trustee as Trustee hereunder, subject nevertheless to its lien provided for in Section 11.01(a).
Nevertheless, on the written request of the Company or of the successor Trustee
or of the Holders of at least 10% in principal amount of the Securities of such
series then Outstanding, such predecessor Trustee, upon payment of its said
charges and disbursements, shall execute and deliver an instrument transferring
to such successor Trustee upon the trusts herein expressed all the rights,
powers and trusts of such predecessor Trustee and shall assign, transfer and deliver
to the successor Trustee all moneys and properties held by such predecessor
Trustee, subject nevertheless to its lien provided for in Section 11.01(a);
and, upon request of any such successor Trustee and the Company shall make,
execute, acknowledge and deliver any and all instruments in writing for more
fully and effectually vesting in and confirming to such successor Trustee all
such authority, rights, powers, trusts, immunities, duties and obligations.


 


Section 11.07
Successor Trustee by Merger. Any Person into which the Trustee or any
successor to it in the trusts created by this Indenture shall be merged or
converted, or any Person with which it or any successor to it shall be
consolidated, or any Person resulting from any merger, conversion or consolidation
to which the Trustee or any such successor to it shall be a party, or any
Person to which the Trustee or any successor to it shall sell or otherwise
transfer all or substantially all of the corporate trust business of the
Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such Person shall be otherwise qualified and
eligible under this Article. In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture with respect to one or
more series of Securities, any of such Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor to such Trustee
may adopt the certificate of authentication of any predecessor Trustee, and
deliver such Securities so authenticated; and in case at that time any of the
Securities 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 certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.


 


Section 11.08
Right to Rely on Officer’s Certificate. Subject to Section 11.02,
and subject to the provisions of Section 16.01 with respect to the
certificates required thereby, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence, bad faith or
willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officer’s Certificate with respect thereto
delivered to the Trustee, and such Officer’s Certificate, in the absence of
negligence, bad faith or willful misconduct 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 11.09
Appointment of Authenticating Agent. The Trustee may appoint an agent
(the “Authenticating
Agent”) reasonably acceptable to the Company to authenticate the
Securities, and the Trustee shall give written notice of such appointment to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by the Authenticating Agent. Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.


 


37

















 


Each
Authenticating Agent shall at all times be a corporation organized and doing
business and in good standing under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Article XI, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Article XI, it shall
resign immediately in the manner and with the effect specified in this Article XI.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Article XI, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent. An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.09, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 11.09.


 


The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 11.09, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 11.01.


 


Section 11.10
Communications by Securityholders with Other Securityholders. Holders of
Securities may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar and anyone
else shall have the protection of Section 312(c) of the Trust
Indenture Act with respect to such communications.


 


ARTICLE XII


 


SATISFACTION AND DISCHARGE;
DEFEASANCE


 


Section 12.01
Applicability of Article. If, pursuant to Section 3.01, provision
is made for the defeasance of Securities of a series and if the Securities of
such series are denominated and payable only in U.S. Dollars (except as
provided pursuant to Section 3.01), then the provisions of this Article shall
be applicable except as otherwise specified pursuant to Section 3.01 for
Securities of such series. Defeasance provisions, if any, for Securities
denominated in a Foreign Currency may be specified pursuant to Section 3.01.


 


Section 12.02
Satisfaction and Discharge of Indenture. This Indenture, with respect to
the Securities of any series (if all series issued under this Indenture are not
to be affected), shall, upon Company Order, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
such Securities herein expressly provided for and rights to receive payments of
principal of and premium, if any, and interest on such Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when,


 


(a) either:


 


(i) all Securities
of such series theretofore authenticated and delivered (other than (A) Securities
that have been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.07 and (B) Securities for whose payment money
has theretofore been deposited in trust or segregated and 


 


38

















 


held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 6.03)
have been delivered to the Trustee for cancellation; or


 


(ii) all Securities
of such series not theretofore delivered to the Trustee for cancellation,


 


(A) have become due
and payable, or


 


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


 


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


 


and in the case of (A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee or
Paying Agent as trust funds in trust for the purpose an amount in the Currency
in which such Securities are denominated (except as otherwise provided pursuant
to Section 3.01) sufficient to pay and discharge the entire Indebtedness
on such Securities for principal and premium, if any, and interest to the date
of such deposit (in the case of Securities that have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under federal bankruptcy laws, as
now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is required to return
the moneys then on deposit with the Trustee to the Company, the obligations of
the Company under this Indenture with respect to such Securities shall not be
deemed terminated or discharged;


 


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


 


(c) the Company has
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such series have
been complied with. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 11.01
and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (a)(i) of this Section, the obligations of the Trustee under Section 12.06
and the last paragraph of Section 6.03(e) shall survive.


 


Section 12.03
Defeasance upon Deposit of Moneys or U.S. Government Obligations. At the
Company’s option, either (a) the Company shall be deemed to have been
Discharged (as defined below) from its obligations with respect to Securities
of any series on the first day after the applicable conditions set forth below
have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Section 6.04
with respect to Securities of any series (and, if so specified pursuant to Section 3.01,
any other restrictive covenant added for the benefit of such series pursuant to
Section 3.01) at any time after the applicable conditions set forth below
have been satisfied:


 


(a) The Company
shall have deposited or caused to be deposited irrevocably 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 (i) money
in an amount, or (ii) U.S. Government Obligations (as defined below) that
through the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination of (i) and
(ii), sufficient to pay and discharge each installment of principal (including
any mandatory sinking fund payments) of and premium, if any, and interest on,
the Outstanding Securities of such series on the dates such installments of
interest or principal and premium are due;


 


(b) No Default with
respect to the Securities of such series shall have occurred and be continuing
on the date of such deposit (other than a Default resulting from the borrowing
of funds and the grant of any related liens to be applied to such deposit); and


 


(c) The Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such series will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of the Company’s exercise
of its option under this Section and will be subject to federal income tax
on the same amounts and in the same manner and at the same times as would have
been the case if such action had not been exercised and, in the case of the
Securities of such series being Discharged accompanied by a ruling to that
effect received from or published by the Internal Revenue Service.


 


39

















 


“Discharged” means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by, and obligations under, the Securities of such series
and to have satisfied all the obligations under this Indenture relating to the
Securities of such series (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the
rights of Holders of Securities of such series to receive, from the trust fund
described in clause (a) above, payment of the principal of and premium, if
any, and interest on such Securities when such payments are due, (B) the
Company’s obligations with respect to Securities of such series under Sections
3.04, 3.06, 3.07, 6.02 and 12.06 and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.


 


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


 


Section 12.04
Repayment to Company. The Trustee and any Paying Agent shall promptly
pay to the Company (or to its designee) upon Company Order any excess moneys or
U.S. Government Obligations held by them at any time. The provisions of the
last paragraph of Section 6.03 shall apply to any money held by the
Trustee or any Paying Agent under this Article that remains unclaimed for
two years after the Maturity of any series of Securities for which money or
U.S. Government Obligations have been deposited pursuant to Section 12.03.


 


Section 12.05
Indemnity for U.S. Government Obligations. The Company shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the deposited U.S. Government Obligations or the principal or
interest received on such U.S. Government Obligations.


 


Section 12.06
Application of Trust Money.


 


(a) Subject to any
applicable abandoned property law, neither the Trustee nor any other paying
agent shall be required to pay interest on any moneys deposited pursuant to the
provisions of this Indenture, except such as it shall agree with the Company in
writing to pay thereon. Any moneys so deposited for the payment of the principal
of, or premium, if any, or interest on the Securities of any series and
remaining unclaimed for two years after the date of the maturity of the
Securities of such series or the date fixed for the redemption of all the
Securities of such series at the time outstanding, as the case may be, shall be
repaid by the Trustee or such other paying agent to the Company upon its
written request and thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the Holders of Securities of such series in
respect of which such moneys shall have been deposited shall be enforceable
only against the Company, and all liability of the Trustee or such other paying
agent with respect to such moneys shall thereafter cease.


 


(b) Subject to the
provisions of the foregoing paragraph, any moneys which at any time shall be
deposited by the Company or on its behalf with the Trustee or any other paying
agent for the purpose of paying the principal of, premium, if any, and interest
on any of the Securities shall be and are hereby assigned, transferred and set
over to the Trustee or such other paying agent in trust for the respective
Holders of the Securities for the purpose for which such moneys shall have been
deposited; but such moneys need not be segregated from other funds except to
the extent required by law.


 


Section 12.07
Deposits of Non-U.S. Currencies. Notwithstanding the foregoing
provisions of this Article, if the Securities of any series are payable in a
Currency other than U.S. Dollars, the Currency or the nature of the government
obligations to be deposited with the Trustee or paying agent under the
foregoing provisions of this Article shall be as set forth in the Officer’s
Certificate or established in the supplemental indenture under which the
Securities of such series are issued.


 


40
















 


ARTICLE
XIII


 


IMMUNITY OF CERTAIN PERSONS


 


Section 13.01
No Personal Liability. No recourse shall be had for the payment of the
principal of, or the premium, if any, or interest on, any Security or for any
claim based thereon or otherwise in respect thereof or of the Indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and the Securities are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, because of
the incurring of the Indebtedness hereby authorized or under or by reason of
any of the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities, or to be implied herefrom or therefrom, and that
all liability, if any, of that character against every such incorporator,
stockholder, officer and director is, by the acceptance of the Securities and
as a condition of, and as part of the consideration for, the execution of this
Indenture and the issue of the Securities, expressly waived and released.


 


ARTICLE XIV


 


SUPPLEMENTAL INDENTURES


 


Section 14.01
Without Consent of Securityholders. Except as otherwise provided as contemplated
by Section 3.01 with respect to any series of Securities, the Company and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any
one or more of or all the following purposes:


 


(a) to add to the
covenants and agreements of the Company, to be observed thereafter and during
the period, if any, in such supplemental indenture or indentures expressed, and
to add Events of Default, in each case for the protection or benefit of the
Holders of all or any series of the Securities (and if such covenants,
agreements and Events of Default are to be for the benefit of fewer than all
series of Securities, stating that such covenants, agreements and Events of
Default are expressly being included for the benefit of such series as shall be
identified therein), or to surrender any right or power herein conferred upon
the Company;


 


(b) to delete or
modify any Events of Default with respect to all or any series of the Securities,
the form and terms of which are being established pursuant to such supplemental
indenture as permitted in Section 3.01 (and, if any such Event of Default
is applicable to fewer than all such series of the Securities, specifying the
series to which such Event of Default is applicable), and to specify the rights
and remedies of the Trustee and the Holders of such Securities in connection
therewith;


 


(c) to add to or
change any of the provisions of this Indenture to provide, change or eliminate
any restrictions on the payment of principal of or premium, if any, on
Securities; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series in any material respect;


 


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


 


(e) to evidence the
succession of another corporation to the Company, or successive successions,
and the assumption by such successor of the covenants and obligations of the
Company contained in the Securities of one or more series and in this Indenture
or any supplemental indenture;


 


(f) to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee with
respect to one or more series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 11.06(c);


 


41

















 


(g) to secure any
series of Securities;


 


(h) to evidence any
changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as
permitted by the terms thereof;


 


(i) to cure or
reform any ambiguity mistake, manifest error, omission, defect or
inconsistency, or to conform the text of any provision herein or in any
indenture supplemental hereto to any description thereof in the applicable
section of a prospectus, prospectus supplement or other offering document that
was intended to be a verbatim recitation of a provision of this Indenture of
any indenture supplemental hereto;


 


(j) to add to or
change or eliminate any provision of this Indenture as shall be necessary or
desirable in accordance with any amendments to the Trust Indenture Act;


 


(k) to add
guarantors or co-obligors with respect to any series of Securities;


 


(l) to make any
change in any series of Securities that does not adversely affect in any
material respect the interests of the Holders of such Securities;


 


(m) to provide for
uncertificated securities in addition to certificated securities;


 


(n) to supplement
any of the provisions of this Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge of any series of Securities;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series or any other series of Securities;


 


(o) to prohibit the
authentication and delivery of additional series of Securities; or


 


(p) to establish the
form and terms of Securities of any series as permitted in Section 3.01,
or to authorize the issuance of additional Securities of a series previously
authorized or to add to the conditions, limitations or restrictions on the
authorized amount, terms or purposes of issue, authentication or delivery of
the Securities of any series, as herein set forth, or other conditions,
limitations or restrictions thereafter to be observed.


 


Subject
to the provisions of Section 14.03, the Trustee is authorized to join with
the Company in the execution of any such supplemental indenture, to make the
further agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
or assets thereunder.


 


Any
supplemental indenture authorized by the provisions of this Section 14.01
may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time Outstanding, notwithstanding any
of the provisions of Section 14.02.


 


Section 14.02
With Consent of Securityholders; Limitations.


 


(a) With the consent
of the Holders (evidenced as provided in Article VIII) of at least a
majority in aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture voting separately, the Company
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 provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series to be affected; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of each
such series affected thereby,


 


(i) extend the
Stated Maturity of the principal of, or any installment of interest on, any
Security, or reduce the principal amount thereof or the interest thereon or any
premium payable upon redemption thereof, or extend the Stated Maturity of, or
change the Currency in which the principal of and premium, if any, or interest
on such Security is denominated or payable, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.02,
or impair the right to institute suit for the enforcement of any payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or materially adversely affect the economic terms of any
right to convert or exchange any Security as may be provided pursuant to Section 3.01;
or


 


(ii) reduce the
percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any supplemental indenture, or the
consent of whose Holders 


 


42

















 


is required for any waiver of compliance with certain
provisions of this Indenture or certain Defaults hereunder and their
consequences provided for in this Indenture; or


 


(iii) modify any of
the provisions of this Section, Section 6.06 or Section 7.06, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section and
Section 6.06, or the deletion of this proviso, in accordance with the
requirements of Sections 11.06 and 14.01(f); or


 


(iv) modify, without
the written consent of the Trustee, the rights, duties or immunities of the
Trustee.


 


(b) A supplemental
indenture that changes or eliminates any 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 the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.


 


(c) It shall not be
necessary for the consent of the Securityholders under this Section 14.02
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


(d) The Company may
set a record date for purposes of determining the identity of the Holders of
each series of Securities entitled to give a written consent or waive
compliance by the Company as authorized or permitted by this Section. Such
record date shall not be more than 30 days prior to the first solicitation of
such consent or waiver or the date of the most recent list of Holders furnished
to the Trustee prior to such solicitation pursuant to Section 312 of the
Trust Indenture Act.


 


(e) Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 14.02, the Company shall mail a
notice, setting forth in general terms the substance of such supplemental
indenture, to the Holders of Securities at their addresses as the same shall
then appear in the Register of the Company. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.


 


Section 14.03
Trustee Protected. Upon the request of the Company, accompanied by the
Officer’s Certificate and Opinion of Counsel required by Section 16.01
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and evidence reasonably satisfactory to the
Trustee of consent of the Holders if the supplemental indenture is to be
executed pursuant to Section 14.02, the Trustee shall join with the
Company in the execution of said supplemental indenture unless said
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 said supplemental
indenture. The Trustee shall be fully protected in relying upon such Officer’s
Certificate and an Opinion of Counsel.


 


Section 14.04
Effect of Execution of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article XIV,
this Indenture shall be deemed to be modified and amended in accordance therewith
and, except as herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders of all of the Securities or of the
Securities of any series affected, as the case may be, 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 14.05
Notation on or Exchange of Securities. 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 the form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Securities then
Outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the Holders of the Securities.


 


43

















 


Section 14.06
Conformity with TIA. Every supplemental indenture executed pursuant to
the provisions of this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.


 


ARTICLE XV


 


SUBORDINATION OF SECURITIES


 


Section 15.01
Agreement to Subordinate. In the event a series of Securities is
designated as subordinated pursuant to Section 3.01, and except as
otherwise provided in a Company Order or in one or more indentures supplemental
hereto, the Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities of such series by his, her or its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any) and interest, if any, on each and all of the
Securities of such series is hereby expressly subordinated, to the extent and
in the manner hereinafter set forth, in right of payment to the prior payment
in full of all Senior Indebtedness. In the event a series of Securities is not
designated as subordinated pursuant to Section 3.01(s), this Article XV
shall have no effect upon the Securities.


 


Section 15.02
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Securities. Subject to Section 15.01, upon any distribution of assets
of the Company upon any dissolution, winding up, liquidation or reorganization
of the Company, whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of the Company or otherwise
(subject to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights conferred in this Indenture upon the
Senior Indebtedness and the holders thereof with respect to the Securities and
the holders thereof by a lawful plan of reorganization under applicable
bankruptcy law):


 


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


 


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


 


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


 


(d) Subject to the
payment in full of all Senior Indebtedness, the Holders of the Securities shall
be subrogated to the rights of the holders of Senior Indebtedness (to the
extent that distributions otherwise payable to such holder have been applied to
the payment of Senior Indebtedness) to receive payments or distributions of
cash, property or securities of the Company applicable to Senior Indebtedness
until the principal of (and premium, if any) and interest, if any, on the
Securities shall be paid in full and no such payments or distributions to the
Holders of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article XV
are and are intended solely for 


 


44

















 


the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand. Nothing contained in this Article XV or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company,
which is unconditional and absolute, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest, if any, on the Securities
as and when the same shall become due and payable in accordance with their
terms, or to affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or in the Securities prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article XV
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to in this Article XV,
the Trustee, subject to the provisions of Section 15.05, shall be entitled
to conclusively rely upon a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereof and all other facts pertinent thereto or to this Article XV.


 


Section 15.03
No Payment on Securities in Event of Default on Senior Indebtedness.
Subject to Section 15.01, no payment by the Company on account of
principal (or premium, if any), sinking funds or interest, if any, on the
Securities shall be made at anytime if: (i) a default on Senior
Indebtedness exists that permits the holders of such Senior Indebtedness to
accelerate its maturity and (ii) the default is the subject of judicial
proceedings or the Company has received notice of such default. The Company may
resume payments on the Securities when full payment of amounts then due for
principal (premium, if any), sinking funds and interest on Senior Indebtedness
has been made or duly provided for in money or money’s worth.


 


In the
event that, notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by the preceding paragraph of this Section 15.03,
such payment shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of such Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, but only to the extent that
the holders of such Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.


 


Section 15.04
Payments on Securities Permitted. Subject to Section 15.01, nothing
contained in this Indenture or in any of the Securities shall (a) affect
the obligation of the Company to make, or prevent the Company from making, at
any time except as provided in Sections 15.02 and 15.03, payments of principal
of (or premium, if any) or interest, if any, on the Securities or (b) prevent
the application by the Trustee of any moneys or assets deposited with it
hereunder to the payment of or on account of the principal of (or premium, if
any) or interest, if any, on the Securities, unless a Responsible Officer of
the Trustee shall have received at its Corporate Trust Office written notice of
any fact prohibiting the making of such payment from the Company or from the
holder of any Senior Indebtedness or from the trustee for any such holder,
together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee more than two Business Days
prior to the date fixed for such payment.


 


Section 15.05
Authorization of Securityholders to Trustee to Effect Subordination.
Subject to Section 15.01, each Holder of Securities by his acceptance
thereof authorizes and directs the Trustee on his, her or its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in this Article XV and appoints the Trustee his
attorney-in-fact for any and all such purposes.


 


Section 15.06
Notices to Trustee. The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment of monies or assets to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this Article XV.
Subject to Section 15.01, notwithstanding the provisions of this Article XV
or any other provisions of this Indenture, neither the Trustee nor any Paying
Agent (other than the Company) shall be charged with knowledge of the existence
of any Senior Indebtedness or of any fact which would prohibit the making of
any payment of moneys or assets to or by the 


 


45

















 


Trustee or such Paying
Agent, unless and until a Responsible Officer of the Trustee or such Paying
Agent shall have received (in the case of a Responsible Officer of the Trustee,
at the Corporate Trust Office of the Trustee) written notice thereof from the
Company or from the holder of any Senior Indebtedness or from the trustee for
any such holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee and, prior
to the receipt of any such written notice, the Trustee shall be entitled in all
respects conclusively to presume that no such facts exist; provided, however,
that if at least two Business Days prior to the date upon which by the terms
hereof any such moneys or assets may become payable for any purpose (including,
without limitation, the payment of either the principal (or premium, if any) or
interest, if any, on any Security) a Responsible Officer of the Trustee shall
not have received with respect to such moneys or assets the notice provided for
in this Section 15.06, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such moneys or assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this Article XV,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.


 


Section 15.07
Trustee as Holder of Senior Indebtedness. Subject to Section 15.01,
the Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article XV in respect of any Senior Indebtedness at any time
held by it to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder. Nothing in this Article XV shall apply to
claims of, or payments to, the Trustee under or pursuant to Sections 7.05 or
11.01.


 


Section 15.08
Modifications of Terms of Senior Indebtedness. Subject to Section 15.01,
any renewal or extension of the time of payment of any Senior Indebtedness or
the exercise by the holders of Senior Indebtedness of any of their rights under
any instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee. No
compromise, alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any liability or
obligation under or in respect of, or of any of the terms, covenants or conditions
of any indenture or other instrument under which any Senior Indebtedness is
outstanding or of such Senior Indebtedness, whether or not such release is in
accordance with the provisions of any applicable document, shall in any way
alter or affect any of the provisions of this Article XV or of the
Securities relating to the subordination thereof.


 


Section 15.09
Reliance on Judicial Order or Certificate of Liquidating Agent. Subject
to Section 15.01, upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee and the Holders of the
Securities shall be entitled to conclusively rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XV.


 


Section 15.10
Satisfaction and Discharge; Defeasance and Covenant Defeasance. Subject
to Section 15.01, amounts and U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Article XII and
not, at the time of such deposit, prohibited to be deposited under Sections
15.02 or 15.03 shall not be subject to this Article XV.


 


46

















 


Section 15.11
Trustee Not Fiduciary for Holders of Senior Indebtedness. With respect
to the holders of Senior Indebtedness, the Trustee undertakes to perform or
observe only such of its covenants and obligations as are specifically set
forth in this Article XV, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company, or any other Person, moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV
or otherwise.


 


ARTICLE XVI


 


MISCELLANEOUS PROVISIONS


 


Section 16.01
Certificates and Opinions as to Conditions Precedent.


 


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


 


(b) Each certificate
or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this
Indenture (other than the certificates provided pursuant to Section 6.05
of this Indenture) shall include (i) a statement that the Person giving
such certificate or opinion has read such covenant or condition; (ii) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (iii) a statement that, in the view or opinion of such Person,
he or she has made such examination or investigation as is necessary to enable
such Person to express an informed view or opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to
whether or not, in the view or opinion of such Person, such condition or
covenant has been complied with.


 


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


 


(d) Any certificate,
statement or opinion of an officer of the Company or of counsel to the Company
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,
unless such officer or counsel, as the case may be, knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based are erroneous. Any certificate
or opinion of any firm of independent registered public accountants filed with
the Trustee shall contain a statement that such firm is independent.


 


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


 


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


 


47

















 


Section 16.02
Trust Indenture Act Controls. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by, or
another provision included in this Indenture which is required to be included
in this Indenture by any of the provisions of Sections 310 to 318, inclusive,
of the Trust Indenture Act, such imposed duties or incorporated provision shall
control.


 


Section 16.03
Notices to the Company and Trustee. Any notice or demand authorized by
this Indenture to be made upon, given or furnished to, or filed with, the
Company or the Trustee shall be sufficiently made, given, furnished or filed
for all purposes if it shall be mailed, delivered or telefaxed to:


 


(a) the Company, at
700 Pennsylvania Drive, Exton PA 19341, Attention: Chief Executive Officer,
Facsimile No.: (484) 595-1582, or at such other address or facsimile number as
may have been furnished in writing to the Trustee by the Company.


 


(b) the Trustee, at
the Corporate Trust Office of the Trustee, Attention: Trust Administrator.


 


Any such notice, demand
or other document shall be in the English language.


 


Section 16.04
Notices to Securityholders; Waiver. Any notice required or permitted to
be given to Securityholders shall be sufficiently given (unless otherwise
herein expressly provided),


 


(a) if to Holders,
if given in writing by first class mail, postage prepaid, to such Holders at
their addresses as the same shall appear on the Register of the Company.


 


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


 


(c) 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 on such
waiver. In any case where notice to Holders is given by mail; neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is mailed in the manner herein provided
shall be conclusively presumed to have been duly given. In any case where
notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice that is published in the
manner herein provided shall be conclusively presumed to have been duly given.


 


Section 16.05
Legal Holiday. Unless otherwise specified pursuant to Section 3.01,
in any case where any Interest Payment Date, Redemption Date or Maturity of any
Security of any series shall not be a Business Day at any Place of Payment for
the Securities of that series, then payment of principal and premium, if any,
or interest need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on such Interest Payment Date, Redemption Date or
Maturity and no interest shall accrue on such payment for the period from and
after such Interest Payment Date, Redemption Date or Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.


 


Section 16.06
Effects of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


Section 16.07
Successors and Assigns. All covenants and agreements in this Indenture
by the parties hereto shall bind their respective successors and assigns and
inure to the benefit of their permitted successors and assigns, whether so
expressed or not.


 


Section 16.08
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 in any way be affected
or impaired thereby.


 


Section 16.09
Benefits of Indenture. Nothing in this Indenture expressed and nothing
that may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or to give to, any Person or corporation other than
the parties hereto and their successors and the Holders of the Securities any
benefit or any 


 


48

















 


right, remedy or claim
under or by reason of this Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all covenants, conditions, stipulations,
promises and agreements in this Indenture contained shall be for the sole and
exclusive benefit of the parties hereto and their successors and of the Holders
of the Securities.


 


Section 16.10
Counterparts Originals. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.


 


Section 16.11
Governing Law; Waiver of Trial by Jury. This Indenture and the
Securities shall be deemed to be contracts made under the law of the State of
New York and for all purposes shall be governed by and construed in accordance
with the law of said State.


 


EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.


 


[signature
page follows]


 


49

















 


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


 


 


	
   

  	
  ADOLOR CORPORATION,  

  
	
   

  	
  as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 

















 


CROSS-REFERENCE TABLE (1)


 


	
  Section of
  Trust Indenture Act of 1939, as Amended

  	
   

  	
  Section of
  Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  11.04(a)

  
	
  310(b)

  	
   

  	
  11.04(b)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  11.01(f)

  
	
  311(b)

  	
   

  	
  11.01(f)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  10.03(a)

  
	
   

  	
   

  	
  10.03(b)

  
	
  312(b)

  	
   

  	
  11.10

  
	
  312(c)

  	
   

  	
  11.10

  
	
  313(a)

  	
   

  	
  10.01(a)

  
	
  313(b)

  	
   

  	
  10.01(a)

  
	
  313(c)

  	
   

  	
  10.01(a)

  
	
  313(d)

  	
   

  	
  10.01(b)

  
	
  314(a)

  	
   

  	
  6.05

  
	
   

  	
   

  	
  10.02

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  16.01(a)

  
	
   

  	
   

  	
  16.01(d)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  16.01(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  11.02(b)

  
	
  315(b)

  	
   

  	
  11.03

  
	
  315(c)

  	
   

  	
  11.02(a)

  
	
  315(d)

  	
   

  	
  11.02(b)(i)

  
	
   

  	
   

  	
  11.02(b)(ii)

  
	
  315(e)

  	
   

  	
  7.08

  
	
  316(a)

  	
   

  	
  7.06

  
	
   

  	
   

  	
   

  
	
  316(b)

  	
   

  	
  7.07

  
	
  316(c)

  	
   

  	
  8.02(e)

  
	
  317(a)

  	
   

  	
  7.03

  
	
  317(b)

  	
   

  	
  6.03

  
	
  318(a)

  	
   

  	
  16.02

  



 






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