EXHIBIT 4.4


 


INTERLINE
BRANDS, INC.


A DELAWARE
CORPORATION


 


AND


 


THE BANK OF
NEW YORK TRUST COMPANY, N.A.


 


TRUSTEE


 


FORM OF
SUBORDINATED DEBT INDENTURE


 


GUARANTEED
TO THE EXTENT SET FORTH HEREIN


BY
THE GUARANTORS NAMED HEREIN


 


DATED
AS OF
               ,
200   


 

















 


INTERLINE
BRANDS, INC.


 


Reconciliation and tie between
Trust Indenture Act of 1939


and Indenture, dated as of
               ,
200   


 




	
  TRUST INDENTURE ACT SECTION

  	
   

  	
  INDENTURE SECTION

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
   

  	
  6.09

  
	
  (a)(2)

  	
   

  	
   

  	
  6.09

  
	
  (a)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
   

  	
  6.08, 6.10

  
	
  311(a)

  	
   

  	
   

  	
  6.13

  
	
  (b)

  	
   

  	
   

  	
  6.13

  
	
  (b)(2)

  	
   

  	
   

  	
  7.03(a), 7.03(b)

  
	
  312(a)

  	
   

  	
   

  	
  7.01, 7.02(a)

  
	
  (b)

  	
   

  	
   

  	
  7.02(b)

  
	
  (c)

  	
   

  	
   

  	
  7.02(c)

  
	
  313(a)

  	
   

  	
   

  	
  7.03(a)

  
	
  (b)

  	
   

  	
   

  	
  7.03(a)

  
	
  (c)

  	
   

  	
   

  	
  7.03(a), 7.03(b)

  
	
  (d)

  	
   

  	
   

  	
  7.03(b)

  
	
  314(a)

  	
   

  	
   

  	
  7.04

  
	
  (b)

  	
   

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
   

  	
  1.02

  
	
  (c)(2)

  	
   

  	
   

  	
  1.02

  
	
  (c)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
   

  	
  1.02

  
	
  315(a)

  	
   

  	
   

  	
  6.01(a)

  
	
  (b)

  	
   

  	
   

  	
  6.02, 7.03(a)

  
	
  (c)

  	
   

  	
   

  	
  6.01(b)

  
	
  (d)

  	
   

  	
   

  	
  6.01(c)

  
	
  (d)(1)

  	
   

  	
   

  	
  6.01(a), 6.01(c)

  
	
  (d)(2)

  	
   

  	
   

  	
  6.01(c)

  
	
  (d)(3)

  	
   

  	
   

  	
  6.01(c)

  
	
  (e)

  	
   

  	
   

  	
  5.14

  
	
  316(a)(1)(A)

  	
   

  	
   

  	
  5.12

  
	
  (a)(1)(B)

  	
   

  	
   

  	
  5.02, 5.13

  
	
  (a)(2)

  	
   

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
   

  	
  5.08

  
	
  (c)

  	
   

  	
   

  	
  1.04(e)

  
	
  317(a)(1)

  	
   

  	
   

  	
  5.03

  
	
  (a)(2)

  	
   

  	
   

  	
  5.04

  
	
  (b)

  	
   

  	
   

  	
  10.05

  
	
  318(a)

  	
   

  	
   

  	
  1.07

  






 


i

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
   

  	
  Compliance Certificates and Opinions

  	
   

  	
  5

  
	
  Section 1.03

  	
   

  	
  Form of Documents Delivered to Trustee

  	
   

  	
  5

  
	
  Section 1.04

  	
   

  	
  Acts of Holders

  	
   

  	
  6

  
	
  Section 1.05

  	
   

  	
  Notices, Etc.,

  	
   

  	
  7

  
	
  Section 1.06

  	
   

  	
  Notice to Holders; Waiver

  	
   

  	
  7

  
	
  Section 1.07

  	
   

  	
  Conflict with Trust Indenture Act

  	
   

  	
  7

  
	
  Section 1.08

  	
   

  	
  Effect of Headings and Table of Contents

  	
   

  	
  7

  
	
  Section 1.09

  	
   

  	
  Successors and Assigns

  	
   

  	
  7

  
	
  Section 1.10

  	
   

  	
  Separability Clause

  	
   

  	
  7

  
	
  Section 1.11

  	
   

  	
  Benefits of Indenture

  	
   

  	
  7

  
	
  Section 1.12

  	
   

  	
  Governing Law

  	
   

  	
  7

  
	
  Section 1.13

  	
   

  	
  Legal Holidays

  	
   

  	
  7

  
	
  Section 1.14

  	
   

  	
  No Recourse Against Others

  	
   

  	
  7

  
	
  Section 1.15

  	
   

  	
  Judgment Currency

  	
   

  	
  8

  
	
  Section 1.16

  	
   

  	
  Counterparts

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 SECURITY FORMS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  Forms Generally

  	
   

  	
  8

  
	
  Section 2.02

  	
   

  	
  Form of Face of Security

  	
   

  	
  8

  
	
  Section 2.03

  	
   

  	
  Form of Reverse of Security

  	
   

  	
  9

  
	
  Section 2.04

  	
   

  	
  Form of Trustee’s Certificate of Authentication

  	
   

  	
  12

  
	
  Section 2.05

  	
   

  	
  Securities in Global Form

  	
   

  	
  13

  
	
  Section 2.06

  	
   

  	
  Form of Legend for the Securities in Global Form

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 THE SECURITIES

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Amount Unlimited; Issuable in Series

  	
   

  	
  13

  
	
  Section 3.02

  	
   

  	
  Denominations

  	
   

  	
  15

  
	
  Section 3.03

  	
   

  	
  Execution, Authentication, Delivery and Dating

  	
   

  	
  15

  
	
  Section 3.04

  	
   

  	
  Temporary Securities

  	
   

  	
  16

  
	
  Section 3.05

  	
   

  	
  Registration, Registration of Transfer and Exchange

  	
   

  	
  16

  
	
  Section 3.06

  	
   

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
   

  	
  17

  
	
  Section 3.07

  	
   

  	
  Payment of Interest; Interest Rights Preserved

  	
   

  	
  18

  
	
  Section 3.08

  	
   

  	
  Persons Deemed Owners

  	
   

  	
  18

  
	
  Section 3.09

  	
   

  	
  Cancellation

  	
   

  	
  19

  
	
  Section 3.10

  	
   

  	
  Computation of Interest

  	
   

  	
  19

  
	
  Section 3.11

  	
   

  	
  CUSIP Number

  	
   

  	
  19

  
	
  Section 3.12

  	
   

  	
  Wire Transfers

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 SATISFACTION AND DISCHARGE

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  19

  
	
  Section 4.02

  	
   

  	
  Application of Trust Money

  	
   

  	
  20

  
	
  Section 4.03

  	
   

  	
  Application to a Specific Series of Securities

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 REMEDIES

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Events of Default

  	
   

  	
  20

  
	
  Section 5.02

  	
   

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  21

  
	
  Section 5.03

  	
   

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  21

  
	
  Section 5.04

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  22

  
	
  Section 5.05

  	
   

  	
  Trustee May Enforce Claims Without Possession of Securities

  	
   

  	
  22

  
	
  Section 5.06

  	
   

  	
  Application of Money Collected

  	
   

  	
  22

  
	
  Section 5.07

  	
   

  	
  Limitation on Suits

  	
   

  	
  22

  
	
  Section 5.08

  	
   

  	
  Unconditional Right of Holders to Receive Principal, Premium and
  Interest

  	
   

  	
  23

  
	
  Section 5.09

  	
   

  	
  Restoration of Rights and Remedies

  	
   

  	
  23

  
	
  Section 5.10

  	
   

  	
  Rights and Remedies Cumulative

  	
   

  	
  23

  
	
  Section 5.11

  	
   

  	
  Delay or Omission Not Waiver

  	
   

  	
  23

  
	
  Section 5.12

  	
   

  	
  Control by Holders

  	
   

  	
  23

  



 


ii

















 


	
  Section 5.13

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  23

  
	
  Section 5.14

  	
   

  	
  Undertaking for Costs

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 THE TRUSTEE

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
   

  	
  Certain Duties and Responsibilities of the Trustee

  	
   

  	
  24

  
	
  Section 6.02

  	
   

  	
  Notice of Defaults

  	
   

  	
  24

  
	
  Section 6.03

  	
   

  	
  Certain Rights of Trustee

  	
   

  	
  24

  
	
  Section 6.04

  	
   

  	
  Not Responsible for Recitals or Issuance of Securities

  	
   

  	
  25

  
	
  Section 6.05

  	
   

  	
  May Hold Securities

  	
   

  	
  25

  
	
  Section 6.06

  	
   

  	
  Money Held in Trust

  	
   

  	
  25

  
	
  Section 6.07

  	
   

  	
  Compensation and Reimbursement

  	
   

  	
  25

  
	
  Section 6.08

  	
   

  	
  Disqualification; Conflicting Interests

  	
   

  	
  25

  
	
  Section 6.09

  	
   

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  25

  
	
  Section 6.10

  	
   

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  25

  
	
  Section 6.11

  	
   

  	
  Acceptance of Appointment by Successor

  	
   

  	
  26

  
	
  Section 6.12

  	
   

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
   

  	
  27

  
	
  Section 6.13

  	
   

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  27

  
	
  Section 6.14

  	
   

  	
  Appointment of Authenticating Agent

  	
   

  	
  27

  
	
  Section 6.15

  	
   

  	
  Compliance with Tax Laws

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Company to Furnish Trustee Names and Addresses of Holders

  	
   

  	
  28

  
	
  Section 7.02

  	
   

  	
  Preservation of Information; Communications to Holders

  	
   

  	
  28

  
	
  Section 7.03

  	
   

  	
  Reports by Trustee

  	
   

  	
  29

  
	
  Section 7.04

  	
   

  	
  Reports by Company

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
   

  	
  When Company May Merge, Etc

  	
   

  	
  30

  
	
  Section 8.02

  	
   

  	
  Opinion of Counsel

  	
   

  	
  30

  
	
  Section 8.03

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 SUPPLEMENTAL INDENTURES

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01

  	
   

  	
  Supplemental Indentures Without Consent of Holders

  	
   

  	
  30

  
	
  Section 9.02

  	
   

  	
  Supplemental Indentures with Consent of Holders

  	
   

  	
  31

  
	
  Section 9.03

  	
   

  	
  Execution of Supplemental Indentures

  	
   

  	
  31

  
	
  Section 9.04

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  	
  32

  
	
  Section 9.05

  	
   

  	
  Conformity with Trust Indenture Act

  	
   

  	
  32

  
	
  Section 9.06

  	
   

  	
  Reference in Securities to Supplemental Indentures

  	
   

  	
  32

  
	
  Section 9.07

  	
   

  	
  Subordination Unimpaired

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10 COVENANTS

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
   

  	
  Payments of Securities

  	
   

  	
  32

  
	
  Section 10.02

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  32

  
	
  Section 10.03

  	
   

  	
  Compliance Certificates

  	
   

  	
  32

  
	
  Section 10.04

  	
   

  	
  Waiver of Stay, Extension or Usury Laws

  	
   

  	
  32

  
	
  Section 10.05

  	
   

  	
  Money for Securities Payments to Be Held in Trust

  	
   

  	
  33

  
	
  Section 10.06

  	
   

  	
  Waiver of Certain Covenants

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 REDEMPTION OF SECURITIES

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
   

  	
  Applicability of Article

  	
   

  	
  33

  
	
  Section 11.02

  	
   

  	
  Election to Redeem; Notice to Trustee

  	
   

  	
  33

  
	
  Section 11.03

  	
   

  	
  Selection by Trustee of Securities to Be Redeemed

  	
   

  	
  34

  
	
  Section 11.04

  	
   

  	
  Notice of Redemption

  	
   

  	
  34

  
	
  Section 11.05

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  34

  
	
  Section 11.06

  	
   

  	
  Securities Payable on Redemption Date

  	
   

  	
  34

  
	
  Section 11.07

  	
   

  	
  Securities Redeemed in Part

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12 SINKING FUNDS

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01

  	
   

  	
  Applicability of Article

  	
   

  	
  35

  
	
  Section 12.02

  	
   

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
   

  	
  35

  
	
  Section 12.03

  	
   

  	
  Redemption of Securities for Sinking Fund

  	
   

  	
  35

  



 


iii

















 


	
  ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 13.01

  	
   

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

  	
   

  	
  35

  
	
  Section 13.02

  	
   

  	
  Defeasance and Discharge

  	
   

  	
  35

  
	
  Section 13.03

  	
   

  	
  Covenant Defeasance

  	
   

  	
  35

  
	
  Section 13.04

  	
   

  	
  Conditions to Defeasance or Covenant Defeasance

  	
   

  	
  36

  
	
  Section 13.05

  	
   

  	
  Deposited Money and Government Obligations To Be Held in Trust

  	
   

  	
  36

  
	
  Section 13.06

  	
   

  	
  Reinstatement

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14 SUBORDINATION

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 14.01

  	
   

  	
  Subordination

  	
   

  	
  37

  
	
  Section 14.02

  	
   

  	
  Priority of Senior Debt

  	
   

  	
  37

  
	
  Section 14.03

  	
   

  	
  Payments upon Bankruptcy

  	
   

  	
  37

  
	
  Section 14.04

  	
   

  	
  Subrogation; Rights not Impaired

  	
   

  	
  37

  
	
  Section 14.05

  	
   

  	
  Authorization of Trustee

  	
   

  	
  37

  
	
  Section 14.06

  	
   

  	
  Notice of the Trustee

  	
   

  	
  37

  
	
  Section 14.07

  	
   

  	
  Holders of Senior Debt; Trustee’s Obligations

  	
   

  	
  37

  
	
  Section 14.08

  	
   

  	
  Actions by Holders of Senior Debt

  	
   

  	
  37

  
	
  Section 14.09

  	
   

  	
  Paying Agent

  	
   

  	
  37

  
	
  Section 14.10

  	
   

  	
  Monies Held in Trust

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 15 GUARANTEES

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 15.01

  	
   

  	
  Guarantee

  	
   

  	
  39

  



 


iv

















 


INDENTURE, dated as of
                            ,
200   , between INTERLINE BRANDS, INC., a Delaware
corporation (herein called the “COMPANY”), the GUARANTORS listed on Schedule 1
hereto (herein called the “GUARANTORS”) and THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Trustee (herein called the “TRUSTEE”).


 


RECITALS
OF THE COMPANY


 


The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (herein called the “Securities”),
to be issued in one or more series as in this Indenture provided.


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE 1


 


DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION


 


Section 1.01                                Definitions. For all purposes of
this Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


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


 


(2) all other terms used herein which
are defined in the Trust Indenture Act, either directly or by reference
therein, or defined by Commission rule and not otherwise defined herein,
have the meanings assigned to them therein;


 


(3) all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with GAAP;


 


(4) the word “INCLUDING” (and with
correlative meaning “INCLUDE”) means including, without limiting the generality
of, any description preceding such term; and


 


(5) 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.


 


“ACT,” when used with respect to any Holder, has the meaning specified
in Section 1.04.


 


“AFFILIATE” of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “CONTROL”
(including, with correlative meanings, the terms “CONTROLLING,” “CONTROLLED BY”
and “UNDER COMMON CONTROL with”), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. For purposes of this
definition, the terms “controlling,” “controlled by” and “under common control
with” shall have correlative meanings.


 


“AUTHENTICATING AGENT” means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.


 


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


 


“BOARD OF DIRECTORS” means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of
the Board of Directors, then the term “BOARD OF DIRECTORS” shall also mean any
duly authorized committee of the Board of Directors of the Company authorized
to act with respect to any particular matter to exercise the power of the Board
of Directors of the Company.


 


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


 


“BUSINESS DAY,” when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities of
any series, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or regulation to close.


 


1

















 


“CAPITAL STOCK” means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of capital stock or any other equity interest of such
Person, including each class of common stock and preferred stock.


 


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


 


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


 


“COMPANY REQUEST” or “COMPANY ORDER” means a written request or order
signed in the name of the Company by any two Officers, at least one of whom
must be its Chairman of the Board, its Chief Executive Officer, its President,
its Chief Financial Officer, its Chief Accounting Officer, its Treasurer, an
Assistant Treasurer or its Controller, and delivered to the Trustee.


 


“CORPORATE TRUST OFFICE” means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at The Bank of New York Trust
Company, N.A., 101 Barclay Street, 8th Floor East, New York, NY 10286; Attn:
Corporate Trust Administration.


 


“COVENANT DEFEASANCE” has the meaning specified in Section 13.03.


 


“CURRENCY UNIT” or “CURRENCY UNITS” shall mean any composite currency.


 


“CUSTODIAN” means any receiver, custodian, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.


 


“DEBT” means, with respect to any Person at any date of determination
(without duplication), (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses, (iii) all
obligations of such Person in respect of letters of credit or bankers’
acceptances or other similar instruments (or reimbursement obligations thereto)
issued on the account of such Person, (iv) all obligations of such Person
issued or assumed as the deferred purchase price of property or services, but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business in connection with acquisition of goods or services, (v) all
obligations of such Person as lessee under capitalized leases, (vi) all
Debt of others secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person; provided that, for purposes of determining
the amount of any Debt of the type described in this clause (vi), if recourse
with respect to such Debt is limited to such asset, the amount of such Debt
shall be limited to the lesser of the fair market value of such asset or the
amount of such Debt, (vii) all Debt and dividends of others guaranteed by
such Person to the extent such Debt and dividends are guaranteed by such
Person, and (viii) to the extent not otherwise included in this definition,
all obligations of such Person for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity prices, forward
contracts, options, swaps, collars and similar arrangements.


 


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


 


“DEFAULTED INTEREST” has the meaning specified in Section 3.07.


 


“DEFEASANCE” has the meaning specified in Section 13.02.


 


“DEPOSITARY” means, with respect to the Securities of any series issuable
or issued 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” shall mean the Depositary with respect
to the Securities of that series.


 


“DOLLARS” and “$” means lawful money of the United States of America.


 


“EVENT OF DEFAULT” has the meaning specified in Section 5.01.


 


“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.


 


“GAAP” means such accounting principles as are generally accepted in the
United States of America which are in effect on the date hereof.


 


“GUARANTEE” means the guarantee by any Guarantor of the obligations
under this Indenture.


 


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“HOLDER” or “SECURITYHOLDER” means a Person in whose name a Security is
registered in the Security Register.


 


“INDEBTEDNESS” means, with respect to any Person (without duplication
for indebtedness or other obligations of such Person), any indebtedness of such
Person for money borrowed, whether incurred, assumed or guaranteed, and
including obligations under capitalized leases.


 


“INDENTURE” means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as
contemplated hereunder.


 


“INTEREST,” when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.


 


“INTEREST PAYMENT DATE,” when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.


 


“JUDGMENT CURRENCY” has the meaning specified in Section 1.15.


 


“LIEN” means, with respect to any property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such property.
For purposes of this Indenture, the Company shall be deemed to own subject to a
Lien any property which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such property.


 


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


 


“NEW YORK BANKING DAY” has the meaning specified in Section 1.15.


 


“OFFICER” means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, any
Vice President, the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller,
the Secretary or any Assistant Secretary of such Person.


 


“OFFICERS’ CERTIFICATE” means a certificate signed by any two Officers
of the Company, at least one of whom must be its Chief Executive Officer, its
President, its Chief Financial Officer, its Chief Accounting Officer, its
Treasurer or its Controller, and delivered to the Trustee.


 


“OPINION OF COUNSEL” means a written opinion of counsel, who may be
an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.


 


“ORIGINAL ISSUE DISCOUNT SECURITY” means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.


 


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


 


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


 


(ii) Securities, or portions thereof, for whose 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; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor reasonably satisfactory to the Trustee has
been made;


 


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


 


(iv) Securities which have been defeased pursuant to Section 13.02;


 


provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
or whether sufficient funds are available for redemption or for any other
purpose and for the purpose of making the calculations required by Section 313
of the Trust Indenture Act, (a) the principal amount of any Original


 


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Issue Discount Security that shall be deemed to be Outstanding for such
purposes shall be that portion of the principal amount thereof that could be
declared to be due and payable upon the occurrence of an Event of Default and
the continuation thereof pursuant to the terms of such Original Issue Discount
Security as of the date of such determination, (b) the principal amount of
a Security denominated in one or more foreign currencies or currency units
shall be the dollar equivalent, determined in the manner provided as contemplated
by Section 3.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (a) above) of such Security, and (c) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.


 


“PAYING AGENT” means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.


 


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


 


“PLACE OF PAYMENT,” when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.


 


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


 


“REDEMPTION DATE,” when used with respect to any Security of any series to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.


 


“REDEMPTION PRICE,” when used with respect to any Security of any series to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.


 


“REGISTERED SECURITY” means any Security issued hereunder and registered
in the Security Register.


 


“REGULAR RECORD DATE” for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.


 


“REQUIRED CURRENCY” has the meaning specified in Section 1.15.


 


“RESPONSIBLE OFFICER,” when used with respect to the Trustee, means any
officer of the Trustee assigned to administer corporate trust matters and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.


 


“SECURITIES” has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.


 


“SECURITY REGISTER” and “SECURITY REGISTRAR” have the respective
meanings specified in Section 3.05.


 


SENIOR DEBT” means the principal of (and premium, if any) and interest
on all Debt of the Company whether created, incurred or assumed before, on or
after the date of this Indenture; provided that such Senior Debt shall not
include any Debt of the Company which by the terms of the instrument creating
or evidencing the same such Debt is specifically designated as being
subordinated to or pari passu with the Securities.


 


This definition may be modified or superseded in a manner as
contemplated by Section 3.01.


 


“SIGNIFICANT SUBSIDIARY” of a Person has the meaning ascribed to such
term in Rule 1.02(w) of Regulation S-X under the Securities Act of 1933,
as amended.


 


“SPECIAL RECORD DATE” for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.


 


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


 


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“SUBSIDIARY” means, with respect to any Person:


 


(1) any corporation, 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) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person (or a combination
thereof); and


 


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


 


“TRUSTEE” means the Person named as the “Trustee” in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Trustee” shall
mean or include each Person who is then a Trustee hereunder, 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.


 


“TRUST INDENTURE ACT” means the Trust Indenture Act of 1939, as amended,
as in force at the date as of which this Indenture was executed; provided,
however, that in the event that such Act is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.


 


“U.S. GOVERNMENT OBLIGATIONS” means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed by the
full faith and credit of the United States of America which, in either case,
are not callable or redeemable at the option of the issuer thereof or otherwise
subject to prepayment, and shall also include a depository receipt issued by a
New York Clearing House 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 depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
held 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 depository receipt.


 


“VICE PRESIDENT,” when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title “vice president.”


 


“VOTING STOCK” of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.


 


Section 1.02                                Compliance Certificates and
Opinions. Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers’ Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.


 


Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:


 


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


 


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


 


(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and


 


(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.


 


Section 1.03                                Form of Documents Delivered
to Trustee. In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion 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.


 


Any certificate or opinion of an Officer may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer actually knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual


 


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matters, upon a certificate 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 actually knows that the certificate or opinion or
representations with respect to such matters are erroneous.


 


Any certificate, statement or opinion of an Officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as
the case may be, actually knows that the certificate or opinion or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion is based are erroneous.


 


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


 


Section 1.04                                Acts of Holders.


 


(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “ACT” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.


 


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


 


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


 


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


 


(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so, provided that the
Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the immediately following
paragraph. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the close of business
on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.


 


(f) The Trustee shall set a record date, which shall not be more
than 15 days prior to the date of commencement of solicitation of such action
contemplated by this section 1.04(f), for the purpose of determining the
Holders of Securities of any series entitled to join in the giving or
making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any direction
referred to in Section 5.12, (iv) any request to institute
proceedings referred to in Section 5.07(2) or (v) any waiver of
past defaults pursuant to Section 5.13, in each case with respect to
Securities of such series. If such a record date is fixed pursuant to this
paragraph, the relevant action may be taken or given before or after such
record date, but only the Holders of record at the close of business on such
record date shall be deemed to be holders of Securities of a series 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; provided that no
such action by Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company’s reasonable expense, shall cause notice
of such record date and the proposed action by Holders to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.06.


 


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Section 1.05                                Notices, Etc., to Trustee and
Company. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,


 


(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing and
mailed first-class postage prepaid, to or with the Trustee at The Bank of
New York Trust Company, N.A., 101 Barclay Street, 8th Floor East, New York, NY
10286; Attn: Corporate Trust Administration; or


 


(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at Interline Brands, Inc., 801 West Bay Street, Jacksonville,
FL 32204, Attention: Secretary, or at any other address previously furnished in
writing to the Trustee by the Company.


 


Section 1.06                                Notice to Holders; Waiver. Where
this Indenture or any Security provides for notice to Holders of any event,
such notice shall be deemed sufficiently given (unless otherwise herein or in
such Security expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. 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 or the validity of
the proceedings to which such notice relates.


 


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


 


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


 


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


 


Section 1.07                                Conflict with Trust Indenture
Act. If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included or deemed included in this
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified
or excluded, such provision of the Trust Indenture Act shall be deemed to apply
to this Indenture as so modified or shall be excluded, as the case may be.


 


Section 1.08                                Effect of Headings and Table of
Contents. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.


 


Section 1.09                                Successors and Assigns. All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.


 


Section 1.10                                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 1.11                                Benefits of Indenture. Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, the
Holders and to the extent specifically set forth herein the holders of Senior
Debt, any benefit or any legal or equitable right, remedy or claim under this
Indenture.


 


Section 1.12                                Governing Law. This Indenture
and the Securities shall be governed by and construed in accordance with the
laws (other than the choice of law provisions) of the State of New York.


 


Section 1.13                                Legal Holidays. In any case
where any Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or of the Securities other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding
Business Day or on such other day as may be set out in the Officers’
Certificate pursuant to Section 3.01 at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
sinking fund payment date, Stated Maturity or Maturity, as the case may be,
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be, if payment is made
on such next succeeding Business Day or other day set out in such Officers’
Certificate.


 


Section 1.14                                No Recourse Against Others. A
director, officer, employee or stockholder, as such, of the Company or any
Guarantor (other than a stockholder which itself is the Company or a Guarantor
of the Securities) shall not have any liability for any obligations of the
Company or any Guarantor under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each


 


7

















 


Securityholder, by accepting a Security,
waives and releases all such liability. Such waivers and releases are part of
the consideration for the issuance of the Securities.


 


Section 1.15                                Judgment Currency. The Company
agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, on the Securities of any series (the “REQUIRED
CURRENCY”) into a currency in which a judgment will be rendered (the “JUDGMENT
CURRENCY”), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day preceding that on which a final unappealable judgment is given and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, “NEW YORK BANKING DAY” means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.


 


Section 1.16                                Counterparts. This instrument 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.


 


ARTICLE 2


 


SECURITY FORMS


 


Section 2.01                                Forms Generally. The Securities
of each series shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.03 for the authentication and
delivery of such Securities.


 


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


 


Section 2.02                                Form of Face of Security.


 


INTERLINE
BRANDS, INC.


 


	
  No.                     

  	
   

  	
  [$]                 

  



 


Interline Brands, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the “COMPANY,” which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
                    ,
or registered assigns, the principal sum of                
[Dollars] on
               
[if the Security is to bear interest prior to Maturity, insert— and to pay interest
thereon from
               
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on                
and
               
in each year [if other than semi-annual payments, insert frequency of payments
and payment dates], commencing
                              ,
at [if the Security is to bear interest at a fixed rate, insert— the rate of
               %
per annum], [if the Security is to bear interest at a variable or floating rate
and if determined with reference to an index, refer to description of index
below] until the principal hereof is paid or made available for payment [if
applicable insert—, and (to the extent that the payment of such interest shall
be legally enforceable) at the rate of
                %
per annum on any overdue principal and premium and on any overdue installment
of interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the
               
or
               
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].


 


[If the Securities are floating or adjustable rate securities with
respect to which the principal of or any premium or interest may be
determined with reference to an index, insert the text of the floating or
adjustable rate provision.]


 


8

















 


[If the Security is not to bear interest prior to Maturity, insert— The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of
                     %
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to
the date payment of such principal has been made or duly provided for. Interest
on any overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the rate
of
                     %
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to
the date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]


 


Payment of the principal of (and premium, if any) and [if applicable,
insert—any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in
                                    ,
in dollars [if applicable, insert—; provided, however, that at the option of
the Company, payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register].


 


[If applicable, insert— So long as all of the Securities of this series are
represented by Securities in global form, the principal of, premium, if any,
and interest, if any, on this global Security shall be paid in same day funds
to the Depositary, or to such name or entity as is requested by an authorized
representative of the Depositary. If at any time the Securities of this series are
no longer represented by global Securities and are issued in definitive
certificated form, then the principal of, premium, if any, and interest, if
any, on each certificated Security at Maturity shall be paid in same day funds
to the Holder upon surrender of such certificated Security at the Corporate
Trust Office of the Trustee, or at such other place or places as may be
designated in or pursuant to the Indenture, provided that such certificated
Security is surrendered to the Trustee, or at such other place or places as may be
designated in or pursuant to the Indenture, provided that such certificated
Security is surrendered to the Trustee, acting as Paying Agent, in time for the
Paying Agent to make such payments in such funds in accordance with its normal
procedures. Payments of interest with respect to such certificated Securities
other than at Maturity may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register on the relevant Regular or Special Record Date or by wire
transfer in same day funds to such account as may have been appropriately
designated to the Paying Agent by such Person in writing not later than such
relevant Regular or Special Record Date.]


 


Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.


 


Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.


 


IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.


 


	
   

  	
  INTERLINE BRANDS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  , 200  

  
					



 


Section 2.03                                Form of Reverse of
Security.


 


This Security is one of a duly authorized issue of securities of the
Company (herein called the “SECURITIES”), issued and to be issued in one or
more series under an Indenture, dated as of
                                    ,
200    (herein called the “INDENTURE”), between the Company and
                              ,
as Trustee (herein called the “TRUSTEE,” which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [, limited in aggregate
principal amount to
$               ].


 


[— The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days’ notice by first class mail, [if
applicable, insert— (1) on
               
in any year commencing with the year
               
and ending with the year                
through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [on or after
               ,
                     ],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount):


 


If redeemed [on or before
                                    ,
                     %,
and if redeemed] during the 12-month period beginning
                                    
of the years indicated,


 


	
   

  	
   

  	
  REDEMPTION

  
	
  YEAR

  	
   

  	
  PRICE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


9

















 


and thereafter at a Redemption Price equal to
                     %
of the principal amount, together in the case of any such redemption [if
applicable, insert— (whether through operation of the sinking fund or
otherwise)] with accrued and unpaid interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]


 


[If applicable, insert— The Securities of this series are subject
to redemption upon not less than 30 nor more than 60 days’ notice by first class mail,
(1) on
                                    
in any year commencing with the year
               
and ending with the year
               
through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after
               ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below:


 


If redeemed during a 12-month period beginning
                                    
of the years indicated,


 


	
  REDEMPTION PRICE

  	
   

  	
  REDEMPTION PRICE FOR

  	
   

  	
   

  
	
  FOR REDEMPTION

  	
   

  	
  REDEMPTION OTHERWISE THAN

  	
   

  	
   

  
	
  THROUGH OPERATION OF THE 

  	
   

  	
  THROUGH OPERATION OF THE

  	
   

  	
   

  
	
  SINKING FUND

  	
   

  	
  SINKING FUND

  	
   

  	
  YEAR

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a Redemption Price equal to
                     %
of the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]


 


[Notwithstanding the foregoing, the Company may not, prior to
               ,
redeem any Securities of this series as contemplated by [clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than
                     %
per annum.]


 


[The sinking fund for this series provides for the redemption on
               
in each year beginning with the year
                     
and ending with the year
                     
of [not less than] $                                    
[(“MANDATORY SINKING FUND”) and not more than
$               ]
aggregate principal amount of Securities of this series.] [Securities of this series acquired
or redeemed by the Company otherwise than through [mandatory] sinking fund
payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made—in the inverse order in which they
become due.]


 


[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]


 


[If the Security is not an Original Issue Discount Security, insert— If
any Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]


 


[If the Security is an Original Issue Discount Security, insert— If an
Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal —insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest
(in each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company’s obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]


 


[This Security is subject to defeasance and covenant defeasance as
described in the Indenture [if applicable, insert — and the supplemental
indenture].]


 


[This Security is subject to satisfaction and discharge as provided in
the Indenture [if applicable, insert — and the supplemental indenture].]


 


[This Security is subject to subordination as provided in the Indenture
[if applicable, insert — and the supplemental indenture].]


 


The Indenture may be modified by the Company and the Trustee
without consent of any Holder with respect to certain matters as described in
the Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by


 


10

















 


the Company and the Trustee with the consent
of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall bind such Holder and all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.


 


No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.


 


As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and for the same Stated
Maturity and aggregate principal amount, will be issued to the designated
transferee or transferees.


 


The Securities of this series are issuable only in registered form without
coupons in denominations of [$1,000] and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.


 


No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.


 


Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.


 


The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or assets
[If other covenants are applicable pursuant to the provisions of Section 3.01,
insert here]. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically
to the Trustee on compliance with the covenants in the Indenture.


 


A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under this Security
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder, by accepting a Security, waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.


 


[If applicable, insert — A director, officer, employee or stockholder,
as such, of any Guarantor shall not have any liability for any obligations of
the Company or such Guarantor under this Security or the Indenture [if
applicable, insert — or the supplemental indenture] or for any claim based on,
in respect of or by reason of, such obligations or their creation. Each Holder,
by accepting a Security, waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Security.]


 


[If applicable, insert — This Security will be entitled to the benefits
of certain Guarantees made for the benefit of the Holders. Reference is hereby
made to the Indenture and the supplemental indenture for a statement of the
respective rights, limitations of rights, duties and obligations thereunder of
the Guarantors, if any, the Trustee and the Holders.]


 


[If applicable, insert— Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures (“CUSIP”), the
Company has caused CUSIP numbers to be printed on the Securities of this series as
a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed
only on the other identification numbers printed hereon.]


 


11

















 


All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.


 


ASSIGNMENT
FORM


 


To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to


 


 


	
   

  	
   

  	
   

  
	
  (Insert
  assignee’s social security or tax I.D. number)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Print or
  type assignee’s name, address and zip code)

  



 


and irrevocably appoint
                                                                  
agent to transfer this Security on the books of the Company. The agent may substitute
another to act for him.


 


	
  Dated:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on

  
	
   

  	
   

  	
  the other side of this Security)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guaranty:

  	
   

  	
   

  
	
   

  	
  [Signatures must be guaranteed by an “eligible

  
	
   

  	
  guarantor institution” meeting the
  requirements of

  
	
   

  	
  the Transfer Agent, which requirements will
  include

  
	
   

  	
  membership or participation in the Medallion
  Stamp

  
	
   

  	
  Program or such other “signature guarantee
  program”

  
	
   

  	
  as may be determined by the Transfer
  Agent in addition

  
	
   

  	
  to, or in substitution for, the Medallion
  Stamp Program,

  
	
   

  	
  all in accordance with the Exchange Act.]

  
	
   

  	
   

  
	
  Social Security Number or

  	
   

  
	
  Taxpayer Identification Number:

  	
   

  	
   

  
							



 


Section 2.04                                Form of Trustee’s
Certificate of Authentication. The Trustee’s certificate of authentication
shall be in substantially the following form:


 


	
  Dated:

  	
   

  	
   

  



 


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


 


 


	
   

  	
   

  	
   

  
	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
				



 


12

















 


Section 2.05                                Securities in Global Form. If
Securities of or within a series are issuable in whole or in part in
global form, then any such Security of such series may provide that
it shall represent the aggregate or a specified amount of the Outstanding
Securities of such series from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be reduced or increased to reflect
exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such manner
and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to Section 3.03
or Section 3.04. Subject to the provisions of Section 3.03 and, if
applicable, Section 3.04, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 3.03 or 3.04 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall
be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.


 


The provisions of the last paragraph of Section 3.03 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need
not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby.


 


Notwithstanding the provisions of Sections 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal
of and premium, if any, and interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.


 


Section 2.06                                Form of Legend for the
Securities in Global Form. Any Security in global form authenticated and
delivered hereunder shall bear a legend in substantially the following form, or
in such other form as may be necessary or appropriate to reflect the
arrangements with or to comply with the requirements of any Depositary:


 


“THIS SECURITY IS IN GLOBAL FORM WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”


 


ARTICLE 3


 


THE SECURITIES


 


Section 3.01                                Amount Unlimited; Issuable in
Series. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.


 


The Securities may be issued from time to time in one or more
series. Prior to the issuance of Securities of any series, there shall be established
in or pursuant to (i) a Board Resolution, (ii) action taken pursuant
to a Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in an Officers’ Certificate, or (iii) one
or more indentures supplemental hereto:


 


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


 


(2) the purchase price, denomination and
any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Sections 3.04, 3.05, 3.06, 9.06 or 11.07);


 


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


 


(4) the rate or rates at which the
Securities of the series shall bear interest, if any, or the method of
calculating such rate or rates of interest, 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 Regular Record Date, if any, for the interest payable on any
Interest Payment Date;


 


(5) the place or places where the
principal of, premium, if any, and interest, if any, on Securities of the series shall
be payable;


 


(6) the place or places where the Securities
may be exchanged or transferred;


 


13

















 


(7) the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which, and the other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, and, if other than as provided in Section 11.03,
the manner in which the particular Securities of such series (if less than
all Securities of such series are to be redeemed) are to be selected for
redemption;


 


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


 


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


 


(10) if other than U.S. dollars, the
currency or currencies (including currency unit or units) in which payments of
principal of, premium, if any, and interest on the Securities of the series shall
or may by payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto;


 


(11) if the payments of principal of,
premium, if any, or interest on the Securities of the series are to be
made, at the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such Securities are
denominated or designated to be payable, the currency or currencies (including
currency unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto;


 


(12) if the amount of payments of principal
of, premium, if any, and interest on the Securities of the series shall be
determined with reference to an index, formula or other method (which index,
formula or method may be based, without limitation, on a currency or
currencies (including currency unit or units) other than that in which the
Securities of the series are denominated or designated to be payable), the
index, formula or other method by which such amounts shall be determined;


 


(13) if other than the principal amount
thereof, the portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 5.02 or the method by which such portion shall be determined;


 


(14) any modifications of or additions to the
Events of Default or the covenants of the Company set forth herein with respect
to Securities of the series and whether and the conditions under which the
Holders of the Securities of the series may waive any such Event of
Default or compliance with any such covenant relating to the Securities of such
series;


 


(15) if either or both of Section 13.02
and Section 13.03 shall be inapplicable, in whole or in part, to the
Securities of the series (provided that if no such inapplicability shall
be specified, then both Section 13.02 and Section 13.03 shall be
applicable to the Securities of the series) and any modification to either such
section as it relates to such series of Securities;


 


(16) if other than the Trustee, the identity
of the Registrar and any Paying Agent;


 


(17) if the Securities of the series shall
be issued in whole or in part in global form, (i) the Depositary for
such global Securities, (ii) the form of any legend in addition to or
in lieu of that in Section 2.06 which shall be borne by such global
Security, (iii) whether beneficial owners of interests in any Securities
of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized
form and denomination, and (iv) if other than as provided in Section 3.05,
the circumstances under which any such exchange may occur;


 


(18) if the Holders of the Securities of the series may convert
or exchange the Securities of the series into or for securities of the
Company or of other entities or other property (or the cash value thereof), the
specific terms of and period during which such conversion or exchange may be
made;


 


(19) if the Securities of the series shall
have the benefits of any Guarantee and, if so, the identity of the Guarantor or
Guarantors and the terms and provisions applicable to any such Guarantee;


 


(20) any provisions for the satisfaction and
discharge of the Securities of the series, including provisions in addition to
or modifying the provisions of Article 4 as they pertain to Securities of
the series;


 


(21) any addition to or change in the
covenants set forth in Article 10 which applies to Securities of the
series;


 


(22) the subordination of the Securities of
such series to other Indebtedness of the Company, including without
limitation, the Securities of any other series; and


 


14

















 


(23) any other terms of the series, including
any terms which may be required by or advisable under the laws of the
United States of America or regulations thereunder or advisable (as determined
by the Company) in connection with the marketing of Securities of the series.


 


All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by
a Board Resolution, (ii) by action taken pursuant to a Board Resolution
and (subject to Section 3.03) set forth, or determined in the manner
provided, in an Officers’ Certificate or (iii) in any such indenture
supplemental hereto. All Securities of any one series need not be issued
at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.


 


If any of the terms of the Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.


 


Section 3.02                                Denominations. The Securities of
each series shall be issuable in registered form without coupons in
such denominations as shall be specified as contemplated by Section 3.01.
In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations
of $1,000 and any integral multiple thereof.


 


Section 3.03                                Execution, Authentication,
Delivery and Dating. The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Financial Officer, or its Chief Accounting Officer attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.


 


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


 


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 the Trustee in
accordance with the Company Order shall authenticate and make such Securities
available for delivery. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as permitted
by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Sections
315(a) through (d) of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating (subject to customary
assumptions, conditions and exceptions):


 


(a) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms
have been established in conformity with the provisions of this Indenture; and


 


(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws affecting the enforcement of creditors’ rights generally and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).


 


If such terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee)
such authentication may not lawfully be made or would involve the Trustee
in personal liability.


 


Notwithstanding the provisions of Section 3.01 and of the
immediately preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the
Board Resolution and the Officers’ Certificate otherwise required pursuant to Section 3.01
or the Company Order and Opinion of Counsel otherwise required pursuant to the
second preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued.


 


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, in accordance with this Section and the Company Order with respect
to the authentication and delivery of such series, authenticate and deliver one
or more Securities of such series in global form that (i) shall
be in an aggregate amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security
or Securities in global form, (ii) shall be registered in the name of the
Depositary for such Security or Securities in global form or its nominee,
and (iii) shall be made available for delivery by the Trustee to such
Depositary or pursuant to such Depositary’s instruction.


 


15

















 


The Trustee shall have no responsibility to determine if the Depositary
is so registered. Each Depositary shall enter into an agreement with the
Trustee and the Company governing the respective duties and rights of such
Depositary, the Company and the Trustee with regard to Securities issued in
global form.


 


Unless otherwise provided for in the form of Security, each
Security shall be dated the date of its authentication.


 


No Security shall be entitled to any benefits under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for
herein executed by the Trustee or an Authenticating Agent by manual signature,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.


 


Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall not be entitled to
the benefits of this Indenture.


 


Section 3.04                                Temporary Securities. Pending
the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and make available for
delivery, temporary Securities of such series which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution
of such Securities.


 


In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.


 


Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions thereof), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After
the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and make available for delivery 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.


 


Section 3.05                                Registration, Registration of
Transfer and Exchange. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee or in any office or agency to be maintained by the
Company in accordance with Section 10.02 in a Place of Payment a register
(the register 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 “SECURITY REGISTER”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of registration of transfers of Securities. The Trustee is
hereby appointed “SECURITY REGISTRAR” for the purpose of registering Securities
and transfers of Securities as herein provided.


 


Upon surrender for registration of transfer of any Security of any series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and Stated Maturity.


 


At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.


 


Each Security issued in global form authenticated under this
Indenture shall be registered in the name of the Depositary designated for such
series or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.


 


Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for Securities in certificated form in
the circumstances described below, a Security in global form 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.


 


16

















 


If 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 defaults in the performance of its duties as
Depositary or it at any time the Depositary for the Securities of such series shall
no longer be eligible to perform such duties, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company’s selection pursuant to Section 3.01(17)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of
like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange
for such Security or Securities in global form.


 


The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such series of
like tenor in global form in exchange for such Security or Securities in
global form.


 


If specified by the Company pursuant to Section 3.01 with respect
to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form 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,


 


(i) to each Person specified by such Depositary a new certified
Security or Securities of the same series of like tenor, 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 Security in global
form; and


 


(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.


 


Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee.


 


Securities issued in exchange for a Security in global form pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, 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.


 


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


 


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


 


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


 


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


 


If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be required (i) to
issue, register the transfer of or exchange Securities of such series during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected
for redemption under Section 11.03 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange
any Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part.


 


The foregoing provisions relating to registration, transfer and exchange
may be modified, supplemented or superseded with respect to any series of
Securities by a Board Resolution or in one or more indentures supplemental
hereto.


 


Section 3.06                                Mutilated, Destroyed, Lost and
Stolen Securities. If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.


 


17

















 


If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.


 


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 such Security.


 


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


 


Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security 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.


 


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 3.07                                Payment of Interest; Interest
Rights Preserved. Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.


 


Any interest on any Security of any series which 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 Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (1) or (2) below:


 


(1) The Company may elect to make
payment of any Defaulted Interest to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment (which shall be not less than 25 days after the receipt by the
Trustee of such notice, unless such Trustee shall consent to an earlier date),
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 reasonably 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 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the reasonable
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).


 


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


 


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


 


Section 3.08                                Persons Deemed Owners. Prior to
due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person
in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of, premium, if any, and (subject to
Sections 3.05 and 3.07) interest 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.


 


18

















 


None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between
such Depositary and owners of beneficial interests in such Security in global
form, the operation of customary practices governing the exercise of the right
of such Depositary (or its nominee) as holder of such Security in global form.


 


Section 3.09                                Cancellation. All Securities
surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and 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
which 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. All canceled Securities shall be held by the Trustee and may be
destroyed (and, if so destroyed, certification of their destruction shall be
delivered to the Company, unless, by a Company Order, the Company shall direct
that canceled Securities be returned to it).


 


Section 3.10                                Computation of Interest. Except
as otherwise specified as contemplated by Section 3.01 for Securities of
any series, interest on the Securities of each series shall be computed on
the basis of a year of twelve 30-day months.


 


Section 3.11                                CUSIP Number. The Company in
issuing Securities of any series may use a “CUSIP” number, and if so,
the Trustee may use the CUSIP number in notices of redemption or exchange
as a convenience to Holders of such series; provided, that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed on the notice or on the Securities of such series, 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 of
any change in the CUSIP number of any series of Securities.


 


Section 3.12                                Wire Transfers. Notwithstanding
any other provision to the contrary in this Indenture, the Company may make
any payment of moneys required to be deposited with the Trustee on account of
principal of, or premium, if any, or interest on the Securities (whether
pursuant to optional or mandatory redemption payments, interest payments or
otherwise) by wire transfer of immediately available funds to an account
designated by the Trustee on or before the date and time such moneys are to be
paid to the Holders of the Securities in accordance with the terms hereof.


 


ARTICLE 4


 


SATISFACTION AND DISCHARGE


 


Section 4.01                                Satisfaction and Discharge of
Indenture. This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities and
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for or in the form of Security for
such series), when the Trustee, upon Company Request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when


 


(1) either (a) all Securities
theretofore authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.05) have been delivered to the Trustee for
cancellation; or (b) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii) are
to be called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the reasonable expense, of the Company, and the
Company, in the case of (b)(i), (ii) or (iii) above, has deposited
with the Trustee as trust funds in trust for the purpose an amount, in the
currency or currencies or currency unit or units in which the Securities of
such series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of such
deposit (in the case of Securities which have become due and payable) or the
Stated Maturity or Redemption Date, as the case may be;


 


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


 


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


 


(4) no event or condition shall exist on
the date of such deposit that, pursuant to the provisions of Section 14.03,
would prevent the Company from making payments of the principal of or interest
on the Securities of such series on the date of such deposit.


 


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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the
obligations of the Company to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.05 shall survive.


 


Section 4.02                                Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.05, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from other funds except to
the extent required by law.


 


Section 4.03                                Application to a Specific Series of
Securities. The Company may elect to satisfy and discharge its obligations
with respect to a specific series of Securities under the Indenture by
complying with the terms of Article 4. If the Company makes such election,
(a) the terms of Section 4.01 and 4.02 shall apply only to the
specific series of Securities and the terms of the Indenture as it relates
to such series of Securities and (b) the other Securities issued
hereunder and the Indenture as it relates to such other Securities shall remain
in full force and effect.


 


ARTICLE 5


 


REMEDIES


 


Section 5.01                                Events of Default. Except as
otherwise specified as contemplated by Section 3.01 for Securities of a
series, “EVENT OF DEFAULT,” wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or to be
effected by reason of Article 14 hereof or by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1) the Company defaults in the payment
of interest on any Security of that series when such interest becomes due
and payable and the default continues for a period of 30 days; or


 


(2) the Company defaults in the payment
of the principal of, or premium, if any, on any Security of that series when
the same becomes due and payable at Maturity or on redemption or otherwise; or


 


(3) the Company fails to deposit any sinking
fund payment, for five days after it becomes due by the terms of a Security of
that series; or


 


(4) the Company fails to observe or perform in
any material respect any of its other covenants, agreements or warranties in
the Securities of that series or this Indenture (other than a covenant,
agreement or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), and the failure to observe or perform continues
for the period and after the notice specified in the last paragraph of this
Section; or


 


(5) an event of default, as defined in
any mortgage, indenture, or instrument under which there may be issued, or
by which there may be secured or evidenced, any Indebtedness of the
Company (including Securities of another series) (other than the Securities of
such series) (whether such Indebtedness now exists or shall hereafter be created
or incurred) shall occur, which event of default (i) is caused by a
failure to pay principal of or premium, if any, or interest on such
Indebtedness at final maturity after the expiration of the grace period
provided in such Indebtedness on the date of such event of default, and (ii) results
in Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such default in payment is
not cured or such acceleration shall not be rescinded or annulled within 30
days after written notice to the Company from the Trustee or to the Company and
to the Trustee from the Holders of at least twenty-five percent in aggregate
principal amount of the Outstanding Securities of that series specifying
such event of default and requiring the Company to cure such default in payment
or cause such acceleration to be rescinded or annulled and stating that such
notice is a “NOTICE OF DEFAULT” hereunder; provided, however, that it shall not
be an Event of Default if the principal amount of Indebtedness which is not
paid at maturity or the maturity of which is accelerated is equal to or less
than $50,000,000; provided further that if, prior to a declaration of
acceleration of the maturity of the Securities of that series or the entry
of judgment in favor of the Trustee in a suit pursuant to Section 5.03,
such default shall be remedied or cured by the Company or waived by the holders
of such Indebtedness, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or waived
without further action upon the part of either the Trustee or any of the
Holders of the Securities of that series; or


 


(6) the Company or any of its
Significant Subsidiaries pursuant to or within the meaning of any Bankruptcy
Law (a) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (b) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (c) consents to or acquiesces in the institution of
bankruptcy or insolvency proceedings against it, (d) applies for, consents
to or acquiesces in the appointment of or taking possession by a Custodian of
it or for all or substantially all of its property, (e) makes a general
assignment for the benefit of its creditors or (f) takes any corporate
action in furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing; or


 


(7) (i) a court of competent
jurisdiction enters a judgment, decree or order for relief in an involuntary
case or proceeding under any Bankruptcy Law which shall (a) approve as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition in respect


 


20

















 


of the Company or any of its Significant
Subsidiaries, (b) appoint a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its property or (c) order
the winding-up or liquidation of affairs of the Company or any of its
Significant Subsidiaries, and such judgment, decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy or
insolvency proceeding is commenced, against the Company or any of its
Significant Subsidiaries and such petition, application or proceeding is not
dismissed within 60 days; or (iii) a warrant of attachment is issued
against any material portion of the property of the Company or any of its
Significant Subsidiaries which is not released within 60 days of service; or


 


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


 


A Default under clause (4) above is not an Event of Default until
the Trustee or the Holders of at least twenty-five percent in aggregate
principal amount of the Outstanding Securities of that series notify the
Company of the Default and the Company does not cure the Default within 60 days
after receipt of the notice. The notice must specify the Default, demand that
it be remedied and state that the notice is a “NOTICE OF DEFAULT.” When a
Default under clause (4) above is cured within such 60-day period, it
ceases to be a Default.


 


Section 5.02                                Acceleration of Maturity;
Rescission and Annulment. If an Event of Default with respect to Securities of
any series (other than an Event of Default specified in clause (6) or
(7) of Section 5.01) occurs and is continuing, the Trustee by notice
in writing to the Company, or the Holders of at least twenty-five percent in
aggregate principal amount of the Outstanding Securities of that series by
notice in writing to the Company and the Trustee, may declare the unpaid
principal of and accrued interest to the date of acceleration (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) on all the Outstanding Securities of that series to be due and
payable immediately and, upon any such declaration, the Outstanding Securities
of that series (or specified principal amount) shall become and be
immediately due and payable.


 


If an Event of Default specified in clause (6) or (7) of Section 5.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.


 


Upon payment of all such principal and interest, all of the Company’s
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 6.07.


 


At any time after a declaration of acceleration of Maturity with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series by notice to the Trustee may rescind
an acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of and interest on the Securities
of that series that has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal that has become due otherwise than by such declaration of
acceleration have been paid, (iii) the rescission would not conflict with
any judgment or decree of a court of competent jurisdiction and (iv) all
payments due to the Trustee and any predecessor Trustee under Section 6.07
have been made.


 


Section 5.03                                Collection of Indebtedness and
Suits for Enforcement by Trustee. The Company covenants that if:


 


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


 


(2) default is made in the payment of
the principal of (or premium, if any, on) any Security of any series at
the Maturity thereof, or


 


(3) default is made in the payment of
any sinking or analogous obligation when the same becomes due by the terms of
the Securities of any series, and any such default continues for any period of
grace provided with respect to the Securities of such series,


 


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


 


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


 


If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem


 


21

















 


most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
secure any other proper remedy.


 


Section 5.04                                Trustee May File Proofs of
Claim. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,


 


(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such judicial
proceedings, and


 


(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.


 


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


 


Section 5.05                                Trustee May Enforce Claims
Without Possession of Securities. All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.


 


Section 5.06                                Application of Money Collected.
Any money collected by the Trustee pursuant to this Article in respect of
the Securities of any series shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal, premium, if any, or interest, upon presentation
of the Securities in respect of which moneys have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:


 


First:  To the payment of all
amounts due the Trustee under Section 6.07 applicable to such series;


 


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


 


Third:  To the Company.


 


The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 5.06. At least ten (10) days
before such record date, the Trustee shall mail to each Holder and the Company
a notice that states the record date, the payment date and the amount to be
paid.


 


Section 5.07                                Limitation on Suits. No Holder
of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:


 


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


 


(2) the Holders of at least twenty-five
percent in principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;


 


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


 


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


 


22

















 


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


 


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


 


Section 5.08                                Unconditional Right of Holders
to Receive Principal, Premium and Interest. Notwithstanding any other provision
in this Indenture but subject to Article 14, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment
of the principal of, premium, if any, and (subject to Section 3.07)
interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.


 


Section 5.09                                Restoration of Rights and
Remedies. If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.


 


Section 5.10                                Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


Section 5.11                                Delay or Omission Not Waiver. No
delay or omission of the Trustee or of any Holder of any Securities to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.


 


Section 5.12                                Control by Holders. The Holders
of a majority in principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series,
provided that:


 


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


 


(2) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction; and


 


(3) subject to Section 6.01, the
Trustee need not take any action which might involve the Trustee in personal
liability or be unduly prejudicial to the Holders not joining therein.


 


Section 5.13                                Waiver of Past Defaults. The
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any
Default or Event of Default with respect to such series and its
consequences, except a Default or Event of Default:


 


(1) in respect of the payment of the
principal of or premium, if any, or interest on any Security of such series, or


 


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


 


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


 


Section 5.14                                Undertaking for Costs. All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of


 


23

















 


Holders, holding in the aggregate more than
ten percent in principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the payment of the
principal of or premium, if any, or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).


 


ARTICLE 6


 


THE TRUSTEE


 


Section 6.01                                Certain Duties and
Responsibilities of the Trustee.


 


(a) Except during the continuance of an Event of Default, the
Trustee’s duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act.


 


(b) In case an Event of Default has occurred and is continuing, and
is known to the Trustee, the Trustee shall exercise 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 man would exercise or use under the
circumstances in the conduct of his own affairs.


 


(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.


 


(d) Every provision of this Indenture which pertains to the Trustee
shall be subject to this Section 6.01.


 


Section 6.02                                Notice of Defaults. Within 90
days after the occurrence of any Default or Event of Default with respect to
the Securities of any series, the Trustee shall give to all Holders of
Securities of such series, as their names and addresses appear in the Security
Register, notice of such Default or Event of Default known to the Trustee,
unless such Default or Event of Default shall have been cured or waived;
provided, however, that, except in the case of a Default or Event of Default in
the payment of the principal of or premium, if any, or interest on any Security
of such series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Holders
of Securities of such series.


 


Section 6.03                                Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:


 


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


 


(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;


 


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


 


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


 


(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee satisfactory security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;


 


(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default which may have occurred, 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, approval or other paper or document, or the books
and records of the Company, unless requested in writing to do so by the Holders
of a majority in principal amount of the Outstanding Securities of any series;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is not, in the opinion of the Trustee, reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;


 


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


 


24

















 


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


 


Section 6.04                                Not Responsible for Recitals or
Issuance of Securities. The recitals herein and in the Securities, except the
Trustee’s certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, 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 or to be made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof.


 


Section 6.05                                May Hold Securities. The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or
any other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.


 


Section 6.06                                Money Held in Trust. Money held
by the Trustee in trust hereunder (including amounts held by the Trustee as
Paying Agent) 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 upon in writing with
the Company.


 


Section 6.07                                Compensation and Reimbursement.
The Company agrees:


 


(1) to pay to the Trustee from time to
time reasonable compensation as negotiated between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);


 


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


 


(3) to indemnify the Trustee for, and to
hold it harmless against, any loss, liability, damage, claim or expense,
including taxes (other than taxes based upon or determined or measured by the
income of the Trustee), incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.


 


When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(6) or Section 5.01(7),
the expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.


 


The provisions of this Section 6.07 shall survive this Indenture
and the resignation or removal of the Trustee.


 


Section 6.08                                Disqualification; Conflicting
Interests. The Trustee shall be disqualified only where such disqualification
is required by Section 310(b) of the Trust Indenture Act. Nothing
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the
Trust Indenture Act.


 


Section 6.09                                Corporate Trustee Required;
Eligibility. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust
Indenture Act having a combined capital and surplus (together with its parent)
of at least $100,000,000 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 Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company may serve
as Trustee. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.


 


Section 6.10                                Resignation and Removal;
Appointment of Successor.


 


(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.


 


25

















 


(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.


 


(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.


 


(d) If at any time:


 


(i) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act 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


 


(ii) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company or by
any such Holder of a Security who has been a bona fide Holder of a Security for
at least six months; or


 


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


 


then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section 315(e) of
the Trust Indenture Act, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.


 


(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company with respect to such Securities. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.


 


(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses
appear in the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.


 


Section 6.11                                Acceptance of Appointment by
Successor.


 


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


 


(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of some (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall


 


26

















 


constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.


 


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


 


(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.


 


Section 6.12                                Merger, Conversion,
Consolidation or Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor (by merger, conversion,
consolidation or otherwise as permitted hereunder) to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


Section 6.13                                Preferential Collection of
Claims Against Company. The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.


 


Section 6.14                                Appointment of Authenticating
Agent. At any time when any of the Securities remain Outstanding the Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of, and subject to the
direction of, the Trustee to authenticate Securities of such series issued
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus
(together with its parent) of not less than $100,000,000 and subject to
supervision or examination by federal or State authority. If such
Authenticating Agent 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 Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or 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, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. 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.


 


The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation as negotiated between the Company and such
Authenticating Agent for its services under this Section.


 


27

















 


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


 


Form of Authenticating
Agent’s


Certificate of Authentication


 


	
  Dated:

  	
   

  	
   

  	
   

  



 


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


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  	
   

  
					



 


Section 6.15                                Compliance with Tax Laws. The
Trustee hereby agrees to comply with all U.S. Federal income tax information
reporting and withholding requirements applicable to it with respect to
payments of premium (if any) and interest on the Securities of any series,
whether acting as Trustee, Security Registrar, Paying Agent or otherwise with
respect to the Securities of any series.


 


ARTICLE 7


 


HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND COMPANY


 


Section 7.01                                Company to Furnish Trustee Names
and Addresses of Holders. The Company will furnish or cause to be furnished to
the Trustee:


 


(a) semi-annually, not later than 15 days after the Regular Record
Date for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Securities as of such Regular Record Date (unless the Trustee has such
information), or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and


 


(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;


 


provided, however, that so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.


 


Section 7.02                                Preservation of Information;
Communications to Holders.


 


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


 


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


 


28

















 


(i)                                     afford
such applicants access to the information preserved at the time by the Trustee
in accordance with Section 7.02(a); or


 


(ii)                                  inform such
applicants as to the approximate number of Holders whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 7.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.


 


If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(a) a copy
of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.


 


(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).


 


Section 7.03                                Reports by Trustee.


 


(a) Within 60 days after
                      
of each year commencing with the year 200   , the Trustee shall
transmit by mail to all Holders of Securities as provided in Section 313(c) of
the Trust Indenture Act, a brief report dated as of
                     ,
if required by and in compliance with Section 313(a) of the Trust
Indenture Act. The Trustee shall also comply with Section 313(b) of
the Trust Indenture Act.


 


(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange or
inter-dealer quotation system upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange or inter-dealer quotation system.


 


Section 7.04                                Reports by Company. The Company
shall:


 


(1) file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;


 


(2) file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations;


 


(3) transmit or cause to be transmitted
by mail to all Holders, as their names and addresses appear in the Security
Register, (a) as promptly as reasonably practicable following the
furnishing of the same to its stockholders, the Company’s annual report to
stockholders, containing certified financial statements, and any other
financial reports which the Company generally furnishes to its stockholders,
and (b) within 30 days after the filing thereof with the Trustee, such
summaries of any other information, documents and reports required to be filed
by the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time
by the Commission; and


 


(4) furnish to the Trustee, on
               
of each year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company’s compliance with all conditions and covenants under
this Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Such certificate need not comply with Section 1.02.


 


29

















 


 


ARTICLE 8


 


CONSOLIDATION, MERGER, LEASE, SALE
OR TRANSFER


 


Section 8.01                                When Company May Merge,
Etc. Except as may be otherwise provided as contemplated by Section 3.01
relating to Securities of a series, the Company shall not consolidate with, or
merge with or into, any other Person (whether or not the Company shall be the
surviving corporation or entity), or convey, transfer or lease all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to any Person or group of affiliated Persons, in one transaction
or a series of related transactions, unless:


 


(1) either
the Company shall be the continuing Person or the Person (if other than the
Company) formed by such consolidation or with which or into which the Company
is merged or the Person (or group of affiliated Persons) to which all or
substantially all the properties and assets of the Company as an entirety or
substantially as an entirety are conveyed, transferred or leased shall be a
corporation or other entity (group of affiliated corporations or entities)
organized and existing under the laws of the United States of America or any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all the obligations of the Company under the Securities
and this Indenture; and


 


(2) immediately
after giving effect to such transaction or series of related transactions,
no Event of Default, and no Default, shall have occurred and be continuing.


 


Notwithstanding
the foregoing, the Company may (a) consolidate with, or merge with or
into, an Affiliate incorporated for the purpose incorporating the Company in
another jurisdiction and/or (b) convey, transfer or lease all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to any Subsidiary or Subsidiaries, in one transaction or a series of
related transactions.


 


Section 8.02                                Opinion
of Counsel. The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 8.01 an Officers’ Certificate and an
Opinion of Counsel stating that the transaction(s) and such supplemental
indenture comply with this Indenture and that all conditions precedent to the
consummation of the transaction(s) under this Indenture have been met.


 


Section 8.03                                Successor
Corporation Substituted. Upon any consolidation by the Company with or merger
by the Company into any other corporation or other entity or any conveyance,
transfer or lease all or substantially all of the property and assets of the
Company in accordance with Section 8.01, the successor corporation or
other entity formed by such consolidation or into which the Company is merged
or the successor corporation or entity or affiliated group of corporations or
entities to which such lease, sale, assignment or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation or corporations or entity or entities had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
corporation or corporations or entity or entities shall be relieved of all
obligations and covenants under this Indenture and the Securities and in the
event of such conveyance or transfer, except in the case of a lease, any such
predecessor corporation may be dissolved and liquidated.


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.01                                Supplemental
Indentures Without Consent of Holders. Without notice to or the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for
any of the following purposes:


 


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


 


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


 


(3) to
add any additional Events of Default with respect to all or any series of
Securities; or


 


(4) to
add or change any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest
coupons; or


 


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


 


(6) to
secure the Securities; or


 


30

















 


(7) to
establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 3.01; or


 


(8) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or


 


(9) to
cure any ambiguity, defect or inconsistency or to correct or supplement any
provision herein which may be inconsistent with any other provision
herein; or


 


(10) to
make any change that does not materially adversely affect the interests of the
Holders of Securities of any series then Outstanding; or


 


(11) to add
Guarantees or Guarantors with respect to all or any series of the
Securities; or


 


(12) to
provide for uncertificated Securities in addition to or in place of
certificated Securities (provided that the uncertificated Securities are issued
in registered form for purposes of Section 163(f) of the
Internal Revenue Code or in a manner such that the uncertificated Securities
are described in Section 163(f)(2)(B) of such Code).


 


Upon request of
the Company, accompanied by a Board Resolution authorizing the execution of any
such supplemental indenture, and upon receipt by the Trustee of the documents
described in (and subject to the last sentence of) Section 9.03, the
Trustee shall join with the Company in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture.


 


Section 9.02                                Supplemental
Indentures with Consent of Holders. With the written consent of the Holders of
a majority in aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture (with the Securities of each series voting
as a class), by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee shall,
subject to Section 9.03, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,


 


(1) change
the Stated Maturity of the principal of, or premium, if any, or any installment
of principal of or premium, if any, or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the optional redemption or Stated Maturity thereof, or change the manner
in which the amount of any principal thereof or premium, if any, or interest
thereon is determined, or reduce the amount of the principal of any Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or change
any Place of Payment where, or the coin or currency or currency unit in which,
any Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);


 


(2) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or Defaults or Events of Default hereunder
and their consequences provided for in this Indenture; or


 


(3) modify
any of the provisions of this Section, Section 5.13 or Section 10.06,
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 10.06, or the deletion of this proviso,
in accordance with the requirements of Sections 6.11(b) and 9.01(8).


 


A supplemental
indenture which changes or eliminates any covenant or other provisions 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.


 


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


 


Section 9.03                                Execution
of Supplemental Indentures. The Trustee shall sign any supplemental indenture
authorized pursuant to this Article, subject to the last sentence of this Section 9.03.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.


 


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Section 9.04                                Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.


 


Section 9.05                                Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust Indenture
Act as then in effect.


 


Section 9.06                                Reference
in Securities to Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of
any series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.


 


Section 9.07                                Subordination
Unimpaired. This Indenture may not be amended to alter the subordination
of any of the Outstanding Securities without the written consent of the requisite
holders of Senior Debt then outstanding that would be adversely affected
thereby.


 


ARTICLE 10


 


COVENANTS


 


Section 10.01                          Payments
of Securities. With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any) and interest on
such Securities in accordance with their terms and this Indenture, and will
duly comply with all the other terms, agreements and conditions contained in,
or made in the Indenture for the benefit of, the Securities of such series.


 


Section 10.02                          Maintenance
of Office or Agency. The Company will maintain an office or agency in each
Place of Payment where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment, where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in 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 address of
the Trustee as set forth in Section 1.05 hereof.


 


The Company may also
from time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


Section 10.03                          Compliance
Certificates.


 


(a) The
Company shall deliver to the Trustee within 90 days after the end of each fiscal
year of the Company (which fiscal year currently ends on the last Friday in the
month of December of each calendar year), an Officers’ Certificate stating
whether or not the signer knows of any Default or Event of Default by the
Company that occurred prior to the end of the fiscal year and is then
continuing. If the signer does know of such a Default or Event of Default, the
certificate shall describe each such Default or Event of Default and its status
and the specific section or sections of this Indenture in connection with
which such Default or Event of Default has occurred. The Company shall also
promptly notify the Trustee in writing should the Company’s fiscal year be
changed so that the end thereof is on any date other than the date on which the
Company’s fiscal year currently ends. The certificate need not comply with Section 1.02
hereof, but shall comply with Section 314(a)(4) of the Trust
Indenture Act.


 


(b) The
Company shall deliver to the Trustee, within 10 days after the occurrence
thereof, notice of any acceleration which with the giving of notice and the
lapse of time would be an Event of Default within the meaning of Section 5.01(5) hereof.


 


(c) The
Company shall deliver to the Trustee forthwith upon becoming aware of a Default
or Event of Default (but in no event later than 10 days after the occurrence of
each Default or Event of Default that is continuing), an Officers’ Certificate
setting forth the details of such Default or Event of Default and the action
that the Company proposes to take with respect thereto and the specific section or
sections of this Indenture in connection with which such Default or Event of
Default has occurred.


 


Section 10.04                          Waiver
of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim, and will actively resist any and all efforts to be compelled
to take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or
any portion of the principal of and/or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.


 


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Section 10.05                          Money
for Securities Payments to Be Held in Trust. If the Company shall at any time
act as its own Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.


 


Whenever the
Company shall have one or more Paying Agents for any series of Securities,
it will, on or prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
to so act.


 


The Company
will cause each Paying Agent for any series of Securities (other than the
Trustee) 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, that such Paying Agent will:


 


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


 


(2) give
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 principal (and
premium, if any) or interest on the Securities of that series; and


 


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


 


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


 


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 one year after such
principal (and premium, if any) or interest has become due and payable shall,
subject to any applicable escheat laws, be paid to the Company on Company
Request, 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 thereof, 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 of 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 New York, New
York, 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 10.06                          Waiver
of Certain Covenants. The Company may omit in any particular instance to
comply with any term, provision or condition set forth in Article 8, Article 10
(other than Sections     or   ) or any covenant
specified as contemplated under Section 3.01 with respect to the
Securities of any series if before the time for such compliance the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.


 


ARTICLE 11


 


REDEMPTION OF SECURITIES


 


Section 11.01                          Applicability
of Article. Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with this Article.


 


Section 11.02                          Election
to Redeem; Notice to Trustee. The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, at least 30 and not more than 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
reasonably satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.


 


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Section 11.03                          Selection
by Trustee of Securities to Be Redeemed. If less than all the Securities of any
series are to be redeemed, the particular Securities to be redeemed shall
be selected prior to the giving of the applicable notice of redemption to
Holders by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, substantially pro rata, by lot or by any
other method as the Trustee considers fair and appropriate and that complies
with the requirements of the principal national securities exchange, if any, on
which such Securities are listed, and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the
principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series;
provided that in case the Securities of such series have different terms
and maturities, the Securities to be redeemed shall be selected by the Company
and the Company shall give notice thereof to the Trustee.


 


The Trustee
shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.


 


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


 


Section 11.04                          Notice
of Redemption. Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 45 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.


 


All notices of
redemption shall state:


 


(1) the
Redemption Date;


 


(2) the
Redemption Price;


 


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


 


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


 


(5) the
place or places where such Securities are to be surrendered for payment of the
Redemption Price;


 


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


 


(7) the
CUSIP number, if any, of the Securities to be redeemed.


 


Notice of
redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and
at the expense of the Company.


 


Section 11.05                          Deposit
of Redemption Price. On or prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section 10.05)
an amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.


 


Unless any
Security by its terms prohibits any sinking fund payment obligation from being
satisfied by delivering and crediting Securities (including Securities redeemed
otherwise than through a sinking fund), the Company may deliver such
Securities to the Trustee for crediting against such payment obligation in
accordance with the terms of such Securities and this Indenture.


 


Section 11.06                          Securities
Payable on Redemption Date. Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) 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, together with accrued interest to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Regular or Special Record Dates according to their terms and the
provisions of Section 3.07.


 


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


 


Section 11.07                          Securities
Redeemed in Part. Any Security which is to be redeemed only in part shall
be surrendered at an office or agency of the Company at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of


 


34

















 


transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and Stated
Maturity, 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.


 


ARTICLE 12


 


SINKING FUNDS


 


Section 12.01                          Applicability
of Article. The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.


 


The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a “MANDATORY SINKING FUND PAYMENT,”
and any payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an “OPTIONAL SINKING
FUND PAYMENT.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.


 


Section 12.02                          Satisfaction
of Sinking Fund Payments with Securities. The Company (1) may deliver
Securities of a series (other than any Securities previously called for
redemption) and (2) may apply as a credit Securities of a series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms
of such Securities as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.


 


Section 12.03                          Redemption
of Securities for Sinking Fund. Not less than 45 days (or such shorter period
reasonably acceptable to the Trustee) prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02 and will also
deliver to the Trustee any Securities to be so delivered (which have not been
previously delivered). Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.


 


ARTICLE 13


 


DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.01                          Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
Unless as otherwise specified as contemplated by Section 3.01 for
Securities of such series, provision is made for the inapplicability of, in
whole or in part, or any modification to, either or both of (a) defeasance
of the Securities of a series under Section 13.02 or (b) covenant
defeasance of the Securities of a series under Section 13.03, then
the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article, shall be applicable to the
Securities of such series and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series elect
to have either Section 13.02 (unless inapplicable) or Section 13.03
(unless inapplicable) be applied to the Outstanding Securities of such series upon
compliance with the applicable conditions set forth below in this Article.


 


Section 13.02                          Defeasance
and Discharge. Upon the Company’s exercise of the option provided in Section 13.01
to defease the Outstanding Securities of a particular series, the Company shall
be discharged from its obligations with respect to the Outstanding Securities
of such series on the date the applicable conditions set forth in Section 13.04
are satisfied (hereinafter, “DEFEASANCE”). Defeasance shall mean that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same); provided, however,
that the following rights, obligations, powers, trusts, duties and immunities
shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Securities of such series to receive,
solely from the trust fund provided for in Section 13.04, payments in
respect 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 such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.05, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article, the Company may exercise
its option with respect to defeasance under this Section 13.02
notwithstanding the prior exercise of its option with respect to covenant
defeasance under Section 13.03 in regard to the Securities of such series.


 


Section 13.03                          Covenant
Defeasance. Upon the Company’s exercise of the option provided in Section 13.01
to obtain a covenant defeasance with respect to the Outstanding Securities of a
particular series, the Company shall be released from its obligations under
this Indenture


 


35

















 


and any applicable supplemental indenture
(except its obligations under Sections 3.04, 3.05, 3.06, 5.06, 5.09, 6.10,
10.01, 10.02, 10.03, 10.04 and 10.05) with respect to the Outstanding
Securities of such series on and after the date the applicable conditions
set forth in Section 13.04 are satisfied (hereinafter, “COVENANT DEFEASANCE”).
Covenant defeasance shall mean that, with respect to the Outstanding Securities
of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in this
Indenture and any applicable supplemental indenture (except its obligations
under Sections 3.04, 3.05, 3.06, 5.06, 5.09, 6.10, 10.01, 10.02, 10.03, 10.04
and 10.05), whether directly or indirectly by reason of any reference elsewhere
herein or by reason of any reference to any other provision herein or in any
other document, and such omission to comply shall not constitute an Event of
Default under Section 5.01(4) or any such supplemental indenture with
respect to Outstanding Securities of such series, and the remainder of this
Indenture and of the Securities of such series shall be unaffected
thereby.


 


Section 13.04                          Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to
defeasance under Section 13.02 and covenant defeasance under Section 13.03
with respect to the Outstanding Securities of a particular series:


 


(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 6.09
who shall agree to comply with the provisions of this Article applicable
to it), under the terms of an irrevocable trust agreement in form and
substance reasonably satisfactory to such Trustee, as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money
in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any, on) and each installment of principal of (and premium, if any)
and interest on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of such
Securities.


 


(2) No
Default or Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit.


 


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


 


(4) In
the case of an election with respect to Section 13.02, the Company shall
have delivered to the Trustee either (a) a ruling directed to the Trustee
received from the Internal Revenue Service to the effect that the Holders of
the Outstanding Securities of such series will not recognize income, gain
or loss for federal income tax purposes as a result of such defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred
or (B) an Opinion of Counsel, based on such ruling or on a change in the
applicable federal income tax law since the date of this Indenture, in either
case to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred.


 


(5) the
case of an election with respect to Section 13.03, the Company shall have
delivered to the Trustee an Opinion of Counsel or a ruling directed to the
Trustee received from the Internal Revenue Service to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.


 


(6) Such
defeasance or covenant defeasance shall be effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 3.01.


 


(7) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for
relating to either the defeasance under Section 13.02 or the covenant
defeasance under Section 13.03 (as the case may be) have been
complied with.


 


Section 13.05                          Deposited
Money and Government Obligations To Be Held in Trust. Subject to the provisions
of the last paragraph of Section 10.05, all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 13.05,
the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding
Securities of a particular series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Securities of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such money need
not be segregated from other funds except to the extent required by law.


 


36

















 


The Company
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 13.04 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.


 


Anything in
this Article to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or
Government Obligations held by it as provided in Section 13.04 with respect
to Securities of any series which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited for the purpose for which
such money or Government Obligations were deposited.


 


Section 13.06                          Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations, as the case may be, in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 13.02
or 13.03 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money or U.S.
Government Obligations, as the case may be, held in trust pursuant to Section 13.05
with respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium
or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money or U.S.
Government Obligations, as the case may be, so held in trust.


 


ARTICLE 14


 


SUBORDINATION


 


Section 14.01                          Subordination.
The Company covenants and agrees, and each Holder of a Security issued
hereunder by his acceptance of a Security likewise covenants and agrees (except
as otherwise provided or contemplated by Section 3.01), that all
Securities shall be issued subject to the provisions of this Article Fourteen
; and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof accepts and agrees to be bound by such
provisions.


 


The payment by
the Company of the principal of, premium, if any and interest on all Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and junior in right of payment to all Senior Debt, whether
outstanding at the date of this Indenture or thereafter incurred.


 


No provision of
this Article Fourteen shall prevent the occurrence of any Event of Default
hereunder or any event which with the giving of notice or the passage of time
or both would constitute an Event of Default.


 


Section 14.02                          Priority
of Senior Debt. In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Debt, or in the event that the maturity of any Senior Debt has
been accelerated because of a default, then, in either case, no payment shall
be made by the Company with respect to the principal (including redemption
payments) of or premium, if any, or interest on the Securities until such
default shall have been cured or waived in writing or shall have ceased to
exist or such Senior Debt shall have been discharged or paid in full.


 


In the event of
the acceleration of the maturity of the Securities, then no payment shall be
made by the Company with respect to the principal (including redemption
payments) of or premium, if any, or interest on the Securities until the
holders of all Senior Debt outstanding at the time of such acceleration shall
receive payment in full of such Senior Debt (including any amounts due upon
acceleration).


 


In the event
that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Holder when such payment is prohibited by the preceding
paragraphs of this Section 14.02, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of Senior
Debt or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear.


 


Section 14.03                          Payments
upon Bankruptcy. Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash property or securities,
to creditors upon any liquidation, dissolution, winding up, receivership,
reorganization, assignment for the benefit of creditors, marshaling of assets
and liabilities or any bankruptcy, insolvency or similar proceedings of the
Company, all amounts due or to become due upon all Senior Debt shall first be
paid in full, in cash or cash equivalents, or payment thereof provided for in
accordance with its terms, before any payment is made on account of the
principal of, premium, if any, or interest on the indebtedness evidenced by the
Securities, and upon any such liquidation, dissolution, winding up,
receivership, reorganization, assignment, marshaling or proceeding, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders or the Trustee under this
Indenture would be entitled except for the provisions of this Article Fourteen,
shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
directly to the holders of Senior Debt (pro rata to such holders on the basis
of the respective amounts of Senior Debt held by such holders) or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any of such Senior Debt may have
been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Debt in full (including, without limitation, except
to the extent, if any, prohibited by mandatory provisions of


 


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law, post-petition interest, in any such
proceedings), after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt, before any payment or distribution is made
to the Holders of the indebtedness evidenced by the Securities or to the
Trustee under this Indenture.


 


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 under this
Indenture or the Holders of the Securities before all Senior Debt is paid in
full or provision is made for such payment in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Debt or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the
payment of all Senior Debt remaining unpaid until all such Senior Debt shall
have been paid in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.


 


For purposes of
this Article Fourteen, the words “cash, property or securities” shall not
be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article Fourteen
with respect to the Securities) to the payment of all Senior Debt which may at
the time be outstanding; provided, that (i) the Senior Debt is assumed by
the new corporation, if any, resulting from any such arrangement, reorganization
or readjustment, and (ii) the rights of the holders of the Senior Debt are
not, without the consent of such holders, altered by such arrangement,
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided in Article Eight shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section if such other Person shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article Eight.
Nothing in Section 14.02 or this Section 14.03 shall apply to claims
of, or payments to, the Trustee under or pursuant to Article Six. This Section shall
be subject to the further provisions of Section 14.06.


 


Section 14.04                          Subrogation;
Rights not Impaired. Subject to the payment in full of all Senior Debt, the
rights of the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Debt to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Debt until the
principal of, premium, if any, and interest on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions
to the holders of the Senior Debt of any cash, property or securities to which
the Holders of the Securities or the Trustee on their behalf would be entitled
except for the provisions of this Article Fourteen and no payment over
pursuant to the provisions of this Article Fourteen to the holders of
Senior Debt by Holders of the Securities or the Trustee on their behalf shall,
as between the Company, its creditors other than holders of Senior Debt and the
Holders of the Securities, be deemed to be a payment by the Company to or on
account of the Senior Debt; and no payments or distributions of cash, property
or securities to or for the benefit of the Holders pursuant to the subrogation
provisions of this Article, which would otherwise have been paid to the holders
of Senior Debt shall be deemed to be a payment by the Company to or for the
account of the Securities. It is understood that the provisions of this Article Fourteen
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of the Senior
Debt, on the other hand.


 


Nothing
contained in this Article Fourteen 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 Debt, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Debt, nor shall anything herein or therein prevent
the Holder of any Security or the Trustee on his or her behalf from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Fourteen of
the holders of Senior Debt 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 Fourteen,
the Trustee, subject to the provisions of Article Six, and the Holders of
the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such liquidation, dissolution, winding
up, receivership, reorganization, assignment or marshaling proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Debt 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 Fourteen.


 


Section 14.05                          Authorization
of Trustee. Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee in his or her behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this Article Fourteen
and appoints the Trustee his or her attorney-in-fact for any and all such
purposes.


 


Section 14.06                          Notice
of the Trustee. The Company shall give prompt written notice to the Trustee and
to any Paying Agent of any fact known to the Company which would prohibit the
making of any payment of moneys to or by the Trustee or any Paying Agent in
respect of the Securities pursuant to the provisions of this Article Fourteen.
Regardless of anything to the contrary contained in this Article Fourteen
or elsewhere in this Indenture, the Trustee shall not be charged with knowledge
of the existence of any Senior Debt or of any default or event of default with
respect to any Senior Debt or of any other facts which would prohibit the
making of any payment of moneys to or by the Trustee, unless and until a
Responsible Officer of the Trustee shall have received notice in writing at its
principal Corporate Trust Office to that effect signed by an officer of the
Company, or by a holder or agent of a holder of Senior Debt who shall have been
certified by the Company or otherwise established to the


 


38

















 


reasonable satisfaction of the Trustee to be
such holder or agent, or by the trustee under any indenture pursuant to which
Senior Debt shall be outstanding, and, prior to the receipt of any such written
notice, the Trustee shall, subject to the provisions of Article Six, be
entitled to assume that no such facts exist; provided, however, that if on a
date at least three Business Days prior to the date upon which by the terms
hereof any such moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of, or interest on any Security) the
Trustee shall not have received with respect to such moneys the notice provided
for in this Section 14.06, then, regardless of anything herein to the
contrary, the Trustee shall have full power and authority to receive such
moneys and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received
by it on or after such prior date.


 


The Trustee
shall be entitled to conclusively rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Debt (or a
trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of Senior Debt or a trustee or agent 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 Debt to participate in any payment or distribution pursuant to
this Article Fourteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt 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 Fourteen, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.


 


Section 14.07                          Holders
of Senior Debt; Trustee’s Obligations. The Trustee and any agent of the Company
or the Trustee shall be entitled to all the rights set forth in this Article Fourteen
with respect to any Senior Debt which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of
Senior Debt and nothing in this Indenture shall deprive the Trustee or any such
agent, of any of its rights as such holder. Nothing in this Article Fourteen
shall apply to claims of, or payments to, the Trustee under or pursuant to Article Six.


 


With respect to
the holders of Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Article Fourteen, and no implied covenants or obligations
with respect to the holders of Senior Debt 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 Debt and, subject to the provisions of Article Six,
the Trustee shall not be liable to any holder of Senior Debt if it shall pay
over or deliver to holders of Securities, the Company or any other Person
moneys or assets to which any holder of Senior Debt shall be entitled by virtue
of this Article Fourteen or otherwise.


 


Section 14.08                          Actions
by Holders of Senior Debt. No right of any present or future holder of any
Senior Debt to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with.


 


Without in any
way limiting the generality of the foregoing paragraph, the holders of Senior
Debt may, at any time and from time to time, without the consent of or notice
to the Trustee or the Holders, without incurring responsibility to the Holders
and without impairing or releasing the subordination provided in this Article Fourteen
or the obligations hereunder of the Holders of the Securities to the holders of
such Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Debt, or otherwise amend or supplement in any manner such
Senior Debt or any instrument evidencing the same or any agreement under which
such Senior Debt is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing such Senior
Debt; (iii) release any Person liable in any manner for the collection of
such Senior Debt; and (iv) exercise or refrain from exercising any rights
against the Company, as the case may be, and any other Person.


 


Section 14.09                          Paying
Agent. In case at any time any paying agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term “Trustee”
as used in this Article Fourteen shall in such case (unless the context
otherwise requires) be construed as extending to and including such paying
agent within its meaning as fully for all intents and purposes as if such
paying agent were named in this Article Fourteen in addition to or in
place of the Trustee; provided that Sections 14.06 and 14.07 shall not apply to
the Company if acting as a Paying Agent.


 


Section 14.10                          Monies
Held in Trust. Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in
trust under Sections 4.01 or 13.04 of this Indenture by the Trustee for the
payment of principal of, premium, if any, and interest on the Securities shall
not be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article Fourteen, and none of the Holders
shall be obligated to pay over any such amount to the Company or any holder of
Senior Debt or any other creditor of the Company.


 


ARTICLE 15


 


GUARANTEES


 


Section 15.01                          Guarantee.
Any series of Securities may be guaranteed by one or more of the
Guarantors. The terms and the form of any such Guarantee will be
established in the manner contemplated by Section 3.01 for that particular
series of Securities.


 


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


 


	
   

  	
  INTERLINE BRANDS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK TRUST COMPANY, N.A.

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  [GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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