EXHIBIT 4.01


ACUSPHERE, INC.


ISSUER


DEBT SECURITIES






INDENTURE


DATED AS OF                    , 200


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


TRUSTEE


 















 


 


CROSS-REFERENCE
TABLE


 


	
  Tia

  Section

  	
   

  	
  Indenture

  Section

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  	
   

  
	
  (a)(2)

  	
   

  	
  7.10

  	
   

  
	
  (a)(3)

  	
   

  	
  N.A.

  	
   

  
	
  (a)(5)

  	
   

  	
  7.10

  	
   

  
	
  (b)

  	
   

  	
  7.10

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  311(a)

  	
   

  	
  7.11

  	
   

  
	
  (b)

  	
   

  	
  7.11

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  312(a)

  	
   

  	
  5.01

  	
   

  
	
  (b)

  	
   

  	
  5.02

  	
   

  
	
  (c)

  	
   

  	
  5.02

  	
   

  
	
  313(a)

  	
   

  	
  5.04

  	
   

  
	
  (b)(1)

  	
   

  	
  5.04

  	
   

  
	
  (b)(2)

  	
   

  	
  5.04

  	
   

  
	
  (c)

  	
   

  	
  12.03

  	
   

  
	
  (d)

  	
   

  	
  5.04

  	
   

  
	
  314(a)(1)

  	
   

  	
  5.03

  	
   

  
	
  (a)(2)

  	
   

  	
  5.03

  	
   

  
	
  (a)(3)

  	
   

  	
  5.03

  	
   

  
	
  (a)(4)

  	
   

  	
  4.05

  	
   

  
	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
  (c)(1)

  	
   

  	
  13.05

  	
   

  
	
  (c)(2)

  	
   

  	
  13.05

  	
   

  
	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
  (e)

  	
   

  	
  13.05

  	
   

  
	
  315(a)

  	
   

  	
  7.01

  	
   

  
	
  (b)

  	
   

  	
  6.07 &
  1.033

  	
   

  
	
  (c)

  	
   

  	
  7.01

  	
   

  
	
  (d)

  	
   

  	
  7.01

  	
   

  
	
  (e)

  	
   

  	
  6.08

  	
   

  
	
  316(a)(last sentence)

  	
   

  	
  1.01

  	
   

  
	
  (a)(1)(A)

  	
   

  	
  6.06

  	
   

  
	
  (a)(1)(B)

  	
   

  	
  6.06

  	
   

  
	
  (a)(2)

  	
   

  	
  9.01(d)

  	
   

  
	
  (b)

  	
   

  	
  6.04

  	
   

  
	
  (c)

  	
   

  	
  5.05

  	
   

  
	
  317(a)(1)

  	
   

  	
  6.02

  	
   

  
	
  (a)(2)

  	
   

  	
  6.02

  	
   

  
	
  (b)

  	
   

  	
  4.04

  	
   

  
	
  318(a)

  	
   

  	
  13.07

  	
   

  



 


N.A. means Not Applicable.


Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be a part of the Indenture
















 


Table of
Contents


	
  ARTICLE I

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01. Certain Terms Defined

  	
   

  	
  1

  	
   

  
	
  SECTION 1.02. Incorporation by Reference of Trust Indenture Act

  	
   

  	
  7

  	
   

  
	
  SECTION 1.03. Rules of Construction

  	
   

  	
  8

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Debt Securities

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01. Forms Generally

  	
   

  	
  8

  	
   

  
	
  SECTION 2.03. Principal Amount; Issuable in Series

  	
   

  	
  9

  	
   

  
	
  SECTION 2.04. Execution of Debt Securities

  	
   

  	
  11

  	
   

  
	
  SECTION 2.05. Authentication and Delivery of Debt Securities

  	
   

  	
  11

  	
   

  
	
  SECTION 2.06. Denomination of Debt Securities

  	
   

  	
  12

  	
   

  
	
  SECTION 2.07. Registration of Transfer and Exchange

  	
   

  	
  12

  	
   

  
	
  SECTION 2.08. Temporary Debt Securities

  	
   

  	
  13

  	
   

  
	
  SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt
  Securities

  	
   

  	
  14

  	
   

  
	
  SECTION 2.10. Cancellation of Surrendered Debt Securities

  	
   

  	
  15

  	
   

  
	
  SECTION 2.11. Provisions of the Indenture and Debt Securities
  for the Sole Benefit of the Parties and the Holders

  	
   

  	
  15

  	
   

  
	
  SECTION 2.12. Payment of Interest; Rights Preserved

  	
   

  	
  15

  	
   

  
	
  SECTION 2.13. Securities Denominated in Foreign Currencies

  	
   

  	
  15

  	
   

  
	
  SECTION 2.14. Wire Transfers

  	
   

  	
  16

  	
   

  
	
  SECTION 2.15. Securities Issuable in the Form of a Global
  Security

  	
   

  	
  16

  	
   

  
	
  SECTION 2.16. Medium Term Securities

  	
   

  	
  18

  	
   

  
	
  SECTION 2.17. Defaulted Interest

  	
   

  	
  18

  	
   

  
	
  SECTION 2.18. Judgments

  	
   

  	
  19

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Redemption of Debt
  Securities

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01. Applicability of Article

  	
   

  	
  19

  	
   

  
	
  SECTION 3.02. Notice of Redemption; Selection of Debt Securities

  	
   

  	
  19

  	
   

  
	
  SECTION 3.03. Payment of Debt Securities Called for Redemption

  	
   

  	
  21

  	
   

  
	
  SECTION 3.04. Mandatory and Optional Sinking Funds

  	
   

  	
  21

  	
   

  
	
  SECTION 3.05. Redemption of Debt Securities for Sinking Fund

  	
   

  	
  22

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Particular Covenants of
  the Company

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01. Payment of Principal of, and Premium, If Any, and
  Interest on, Debt Securities

  	
   

  	
  23

  	
   

  
	
  SECTION 4.02. Maintenance of Offices or Agencies for
  Registration of Transfer, Exchange and Payment of Debt Securities

  	
   

  	
  23

  	
   

  
	
  SECTION 4.03. Appointment to Fill a Vacancy in the Office of
  Trustee

  	
   

  	
  24

  	
   

  
	
  SECTION 4.04. Duties of Paying Agents, etc

  	
   

  	
  24

  	
   

  
	
  SECTION 4.05. Statement by Officers as to Default

  	
   

  	
  24

  	
   

  
	
  SECTION 4.06. Existence

  	
   

  	
  25

  	
   

  
	
  SECTION 4.07. Maintenance of Properties

  	
   

  	
  25

  	
   

  
	
  SECTION 4.08. Payment of Taxes and Other Claims

  	
   

  	
  25

  	
   

  



 









 



 


	
  ARTICLE V

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Holders’ Lists and
  Reports by the Company And the Trustee

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01. Company to Furnish Trustee Information as to Names
  and Addresses of Holders; Preservation of Information

  	
   

  	
  25

  	
   

  
	
  SECTION 5.02. Communications to Holders

  	
   

  	
  26

  	
   

  
	
  SECTION 5.03. Reports by Company

  	
   

  	
  26

  	
   

  
	
  SECTION 5.04. Reports by Trustee

  	
   

  	
  26

  	
   

  
	
  SECTION 5.05. Record Dates for Action by Holders

  	
   

  	
  26

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Remedies of the Trustee
  and Holders in Event of Default

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01. Events of Default

  	
   

  	
  27

  	
   

  
	
  SECTION 6.02. Collection of Indebtedness by Trustee, etc

  	
   

  	
  28

  	
   

  
	
  SECTION 6.03. Application of Moneys Collected by Trustee

  	
   

  	
  29

  	
   

  
	
  SECTION 6.04. Limitation on Suits by Holders

  	
   

  	
  30

  	
   

  
	
  SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise
  of Rights Not a Waiver of Default

  	
   

  	
  30

  	
   

  
	
  SECTION 6.06. Rights of Holders of Majority in Principal Amount
  of Debt Securities to Direct Trustee and to Waive Default

  	
   

  	
  31

  	
   

  
	
  SECTION 6.07. Trustee to Give Notice of Defaults Known to It,
  but May Withhold Such Notice in Certain Circumstances

  	
   

  	
  31

  	
   

  
	
  SECTION 6.08. Requirement of an Undertaking To Pay Costs in
  Certain Suits under the Indenture or Against the Trustee

  	
   

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Concerning the Trustee

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01. Certain Duties and Responsibilities

  	
   

  	
  32

  	
   

  
	
  SECTION 7.02. Certain Rights of Trustee

  	
   

  	
  33

  	
   

  
	
  SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
  Debt Securities

  	
   

  	
  34

  	
   

  
	
  SECTION 7.04. Trustee, Paying Agent or Registrar May Own
  Debt Securities

  	
   

  	
  34

  	
   

  
	
  SECTION 7.05. Moneys Received by Trustee to Be Held in Trust

  	
   

  	
  35

  	
   

  
	
  SECTION 7.06. Compensation and Reimbursement

  	
   

  	
  35

  	
   

  
	
  SECTION 7.07. Right of Trustee to Rely on an Officers’
  Certificate Where No Other Evidence Specifically Prescribed

  	
   

  	
  35

  	
   

  
	
  SECTION 7.08. Separate Trustee; Replacement of Trustee

  	
   

  	
  35

  	
   

  
	
  SECTION 7.09. Successor Trustee by Merger

  	
   

  	
  37

  	
   

  
	
  SECTION 7.10. Eligibility; Disqualification

  	
   

  	
  37

  	
   

  
	
  SECTION 7.11. Preferential Collection of Claims Against Company

  	
   

  	
  37

  	
   

  
	
  SECTION 7.12. Compliance with Tax Laws

  	
   

  	
  37

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Concerning the Holders

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01. Evidence of Action by Holders

  	
   

  	
  37

  	
   

  
	
  SECTION 8.02. Proof of Execution of Instruments and of Holding
  of Debt Securities

  	
   

  	
  38

  	
   

  
	
  SECTION 8.03. Who May Be Deemed Owner of Debt Securities

  	
   

  	
  38

  	
   

  
	
  SECTION 8.04. Instruments Executed by Holders Bind Future
  Holders

  	
   

  	
  38

  	
   

  



 



 ii
 






 



 


	
  ARTICLE IX

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Supplemental Indentures

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01. Purposes for Which Supplemental Indenture
  May Be Entered into Without Consent of Holders

  	
   

  	
  39

  	
   

  
	
  SECTION 9.02. Modification of Indenture with Consent of Holders
  of Debt Securities

  	
   

  	
  40

  	
   

  
	
  SECTION 9.03. Effect of Supplemental Indentures

  	
   

  	
  41

  	
   

  
	
  SECTION 9.04. Debt Securities May Bear Notation of Changes
  by Supplemental Indentures

  	
   

  	
  42

  	
   

  
	
  SECTION 9.05. Payment for Consent

  	
   

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consolidation, Merger,
  Sale or Conveyance

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01. Consolidations and Mergers of the Company

  	
   

  	
  42

  	
   

  
	
  SECTION 10.02. Rights and Duties of Successor Corporation

  	
   

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Satisfaction and
  Discharge of Indenture; Defeasance; Unclaimed Moneys

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01. Applicability of Article

  	
   

  	
  43

  	
   

  
	
  SECTION 11.02. Satisfaction and Discharge of Indenture:
  Defeasance

  	
   

  	
  43

  	
   

  
	
  SECTION 11.03. Conditions of Defeasance

  	
   

  	
  44

  	
   

  
	
  SECTION 11.04. Application of Trust Money

  	
   

  	
  45

  	
   

  
	
  SECTION 11.05. Repayment to Company

  	
   

  	
  45

  	
   

  
	
  SECTION 11.06. Indemnity for U.S. Government Obligations

  	
   

  	
  45

  	
   

  
	
  SECTION 11.07. Reinstatement

  	
   

  	
  45

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subordination of Debt
  Securities

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01. Applicability of Article; Agreement To
  Subordinate

  	
   

  	
  45

  	
   

  
	
  SECTION 12.02. Liquidation, Dissolution, Bankruptcy

  	
   

  	
  46

  	
   

  
	
  SECTION 12.03. Default on Senior Indebtedness

  	
   

  	
  46

  	
   

  
	
  SECTION 12.04. Acceleration of Payment of Debt Securities

  	
   

  	
  47

  	
   

  
	
  SECTION 12.05. When Distribution Must Be Paid Over

  	
   

  	
  47

  	
   

  
	
  SECTION 12.06. Subrogation

  	
   

  	
  47

  	
   

  
	
  SECTION 12.07. Relative Rights

  	
   

  	
  47

  	
   

  
	
  SECTION 12.08. Subordination May Not Be Impaired by Company

  	
   

  	
  47

  	
   

  
	
  SECTION 12.09. Rights of Trustee and Paying Agent

  	
   

  	
  47

  	
   

  
	
  SECTION 12.10. Distribution or Notice to Representative

  	
   

  	
  48

  	
   

  
	
  SECTION 12.11. Article XII Not to Prevent Defaults or Limit
  Right to Accelerate

  	
   

  	
  48

  	
   

  
	
  SECTION 12.12. Trust Moneys Not Subordinated

  	
   

  	
  48

  	
   

  
	
  SECTION 12.13. Trustee Entitled to Rely

  	
   

  	
  48

  	
   

  
	
  SECTION 12.14. Trustee to Effectuate Subordination

  	
   

  	
  48

  	
   

  
	
  SECTION 12.15. Trustee Not Fiduciary for Holders of Senior
  Indebtedness

  	
   

  	
  48

  	
   

  
	
  SECTION 12.16. Reliance by Holders of Senior Indebtedness on
  Subordination Provisions

  	
   

  	
  49

  	
   

  



 



 iii
 






 



 


	
  ARTICLE XIII

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Miscellaneous
  Provisions

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.01. Successors and Assigns of Company Bound by
  Indenture

  	
   

  	
  49

  	
   

  
	
  SECTION 13.02. Acts of Board, Committee or Officer of Successor
  Company Valid

  	
   

  	
  49

  	
   

  
	
  SECTION 13.03. Required Notices or Demands

  	
   

  	
  49

  	
   

  
	
  SECTION 13.04. Indenture and Debt Securities to Be Construed in
  Accordance with the Laws of the State of New

  	
   

  	
  50

  	
   

  
	
  SECTION 13.05. Officers’ Certificate and Opinion of Counsel to
  Be Furnished upon Application or Demand by the Company

  	
   

  	
  50

  	
   

  
	
  SECTION 13.06. Payments Due on Legal Holidays

  	
   

  	
  50

  	
   

  
	
  SECTION 13.07. Provisions Required by Trust Indenture Act to
  Control

  	
   

  	
  51

  	
   

  
	
  SECTION 13.08. Computation of Interest on Debt Securities

  	
   

  	
  51

  	
   

  
	
  SECTION 13.09. Rules by Trustee, Paying Agent and Registrar

  	
   

  	
  51

  	
   

  
	
  SECTION 13.10. No Recourse Against Others

  	
   

  	
  51

  	
   

  
	
  SECTION 13.11. Severability

  	
   

  	
  51

  	
   

  
	
  SECTION 13.12. Effect of Headings

  	
   

  	
  51

  	
   

  
	
  SECTION 13.13. Indenture May Be Executed in Counterparts

  	
   

  	
  51

  	
   

  



 


 



 iv















INDENTURE dated as of , 200 ,
between ACUSPHERE, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes called the “Company”), and
The Bank of New York, a New York trust company (hereinafter sometimes 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 debentures, notes, bonds or other evidences of indebtedness
to be issued in one or more series unlimited as to principal amount (herein
called the “Debt Securities”), as in this Indenture provided.


NOW, THEREFORE, THIS INDENTURE
WITNESSETH


In consideration of the premises,
and of the purchase and acceptance of the Debt Securities by the holders
thereof, the Company and the Trustee covenant and agree with each other, for
the benefit of the respective Holders from time to time of the Debt Securities
or any series thereof, as follows:


ARTICLE I


DEFINITIONS


SECTION 1.01 CERTAIN TERMS
DEFINED. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01. All other terms
used in this Indenture which are defined in the Trust Indenture Act or which
are by reference therein defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force as of the date of original execution of this
Indenture.


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


“AUTHORIZED NEWSPAPER” means a
newspaper in an official language of the country of publication customarily
published at least once a day, and customarily published for at least five days
in each calendar week, and of general circulation in such city or cities
specified pursuant to Section 2.03 with respect to the Debt Securities of
any series. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any business day in such city.


“BANKRUPTCY LAW” means Title 11,
United States Code, or any similar Federal or state law for the relief of
debtors.


“BOARD OF DIRECTORS” means either
the Board of Directors of the Company or any duly authorized committee or subcommittee
of such Board, except as the context may otherwise require.


“BUSINESS DAY” means, when used
with respect to any Place of Payment specified pursuant to Section 2.03,
any day that is not a Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies in such Place of Payment are authorized
or obligated by law to close, except as otherwise specified pursuant to Section 2.03.


“CAPITALIZED LEASE OBLIGATION”
means an obligation that is required to be classified and accounted for as a
capitalized lease for financial reporting purposes in accordance with GAAP; and
the amount of Indebtedness represented by such obligation shall be the
capitalized amount of such 









 



 


obligation determined in accordance with GAAP; and the
Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.


“CAPITAL STOCK” of any Person
means any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests (including partnership
interests) in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.


“COMMON STOCK” means the common
shares, $0.01 par value per share, of the Company, which stock is currently
listed on the Nasdaq Stock Market, Inc.


“COMPANY” means Acusphere, Inc.,
a Delaware corporation, and, subject to the provisions of Article X, shall
also include its successors and assigns.


“COMPANY ORDER” means a written
order of the Company, signed by its Chairperson of the Board, its Vice
Chairperson, Chief Executive Officer or President and any Vice President, the
Chief Financial Officer, the Controller, the chief accounting officer, the
Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary.


“CORPORATE TRUST OFFICE OF THE
TRUSTEE” or other similar term means the corporate trust office of the Trustee
at which, at any particular time, this Indenture shall be principally
administered in the United States of America, except that with respect to the
presentation of Debt Securities for payment or for registration of transfer and
exchange, such term shall also mean the office of the Trustee or the Trustee’s
agent, which office at the date hereof is located at 111 Sanders Creek Parkway,
Mail Stop: DM-SYR-02, East Syracuse, NY 13057, Attention: Corporate
Trust Operations/Transfers.


“CURRENCY” means Dollars or
Foreign Currency.


“DEBT SECURITY” or “DEBT
SECURITIES” has the meaning stated in the first recital of this Indenture and
more particularly means any debt security or debt securities, as the case may
be, of any series authenticated and delivered under this Indenture.


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


“DEPOSITARY” means, unless
otherwise specified by the Company pursuant to either Section 2.03 or
2.15, with respect to registered Debt Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Exchange Act or other applicable
statute or regulations.


“DESIGNATED SENIOR INDEBTEDNESS”
means any Senior Indebtedness of the Company as to which the Company has
notified the Trustee at the time of issuance thereof, or upon execution of this
Indenture that such Senior Indebtedness will be treated as Designated Senior
Indebtedness under this Indenture, or as designated as such in an agreement
between the Company and the holder of the Senior Indebtedness.


“DISQUALIFIED STOCK” of a Person
means Redeemable Stock of such Person as to which the maturity, mandatory
redemption, conversion or exchange or redemption at the option of the holder
thereof occurs, or may occur, on or prior to the first anniversary of the
Stated Maturity of the Debt Securities as provided in a supplemental indenture
setting forth the terms of such Debt Securities.


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



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“DOLLAR EQUIVALENT” means, with
respect to any monetary amount in a Foreign Currency, at any time for the
determination thereof, the amount of Dollars obtained by converting such
Foreign Currency involved in such computation into Dollars at the spot rate for
the purchase of Dollars with the applicable Foreign Currency as quoted by
Citibank, N.A. (unless another comparable financial institution is designated
by the Company) in New York, New York at approximately 11:00 a.m. (New
York time) on the date two business days prior to such determination.


“EVENT OF DEFAULT” has the
meaning specified in Section 6.01.


“EXCHANGE ACT” means the
Securities Exchange Act of 1934, as amended.


“FOREIGN CURRENCY” means a
currency issued by the government of any country (other than the United States)
or the European Union or a composite currency the value of which is determined
by reference to the values of the currencies of any group of countries.


“GAAP” means generally accepted
accounting principles in the United States as in effect as of the date on which
the Debt Securities of the applicable series are issued, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (ii) statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iii) the rules and regulations of the SEC,
including opinions and pronouncements in staff accounting bulletins and similar
written statements from the accounting staff of the SEC. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.


“GLOBAL SECURITY” means with
respect to any series of Debt Securities issued hereunder, a Debt Security
which is executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction, all in
accordance with this Indenture and any indentures supplemental hereto, or
resolution of the Board of Directors and set forth in an Officers’ Certificate,
which shall be registered in the name of the Depositary or its nominee and
which shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all the Outstanding Debt Securities of such
series or any portion thereof, in either case having the same terms, including,
without limitation, the same original issue date, date or dates on which
principal is due and interest rate or method of determining interest.


“GUARANTEE” means any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); PROVIDED, HOWEVER, that the term
“Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.


“HOLDER,” “HOLDER OF DEBT
SECURITIES” or other similar terms mean, with respect to a Registered Security,
the Registered Holder.


“INCUR” means issue, assume,
Guarantee, incur or otherwise become liable for; PROVIDED, HOWEVER, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be incurred by such Subsidiary at the time it
becomes a Subsidiary. The terms “Incurred”, “Incurrence” and “Incurring” shall
each have a correlative meaning.



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“INDEBTEDNESS” means, with
respect to any Person on any date of determination (without duplication), (i) the
principal of Indebtedness of such Person for borrowed money; (ii) the
principal of obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments; (iii) all Capitalized Lease Obligations of
such Person; (iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables); (v) all
obligations of such Person in respect of letters of credit, banker’s
acceptances or other similar instruments or credit transactions (including
reimbursement obligations with respect thereto), other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iv) above) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third business day following receipt by such Person of a demand
for reimbursement following payment on the letter of credit; (vi) the amount
of all obligations of such Person with respect to the redemption, repayment or
other repurchase of any Disqualified Stock (but excluding, in each case, any
accrued dividends); (vii) all Indebtedness of other Persons secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed
by such Person; PROVIDED, HOWEVER, that the amount of such Indebtedness shall
be the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness of such other
Persons; and (viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person.


For purposes of this definition,
the maximum fixed redemption, repayment or repurchase price of any Disqualified
Stock that does not have a fixed redemption, repayment or repurchase price
shall be calculated in accordance with the terms of such Stock as if such Stock
were redeemed, repaid or repurchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.


“INDENTURE” means this instrument
as originally executed, or, if amended or supplemented as herein provided, as
so amended or supplemented and shall include the form and terms of particular
series of Debt Securities as contemplated hereunder, whether or not a
supplemental indenture is entered into with respect thereto.


“LIEN” means any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind (including
any conditional sale or other title retention agreement or lease in the nature
thereof).


“OFFICERS’ CERTIFICATE” means a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President, any Vice President, the Chief Financial Officer, the Controller
or chief accounting officer and by the Treasurer, the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company. Each such
certificate shall include the statements provided for in Section 13.05, if
applicable.


“OPINION OF COUNSEL” means an
opinion in writing signed by legal counsel for the Company (which counsel may
be an employee of the Company), or outside counsel for the Company. Each such
opinion shall include the statements provided for in Section 13.05, if
applicable.


“ORIGINAL ISSUE DISCOUNT DEBT
SECURITY” means any Debt Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration or
acceleration of the maturity thereof pursuant to Section 6.01.


“OUTSTANDING” when used with
respect to any series of Debt Securities, means, as of the date of
determination, all Debt Securities of that series theretofore authenticated and
delivered under this Indenture, except: (i) Debt Securities of that series
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; (ii) Debt Securities of that series for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any paying agent (other 



 4
 






 



 


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 Debt Securities; PROVIDED, HOWEVER, that, if such Debt
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and (iii) Debt Securities of that series which have been
paid pursuant to Section 2.09 or in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt 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 Debt Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Debt
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 Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt Securities or an
Affiliate of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of outstanding Debt Securities have
given any request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall
be the Dollar Equivalent, determined in the manner provided as contemplated by Section 2.03
on the date of original issuance of such Debt Security, of the principal amount
(or, in the case of any Original Issue Discount Security, the Dollar Equivalent
on the date of original issuance of such Security of the amount determined as
provided in the preceding sentence above) of such Debt Security.


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


“PLACE OF PAYMENT” means, when
used with respect to the Debt Securities of any series, the place or places
where the principal of, and premium, if any, and interest on, the Debt Securities
of that series are payable as specified pursuant to Section 2.03.


“PREFERRED STOCK” as applied to
the Capital Stock of any corporation, means Capital Stock of any class or
classes (however designated) which is preferred as to the payment of dividends,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of Capital Stock of
any other class of such corporation.


“REDEEMABLE STOCK” means, with
respect to any Person, any Capital Stock which by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable) or
upon the happening of any event (i) matures or is mandatorily redeemable
(other than redeemable only for Capital Stock of such Person which itself is
not Disqualified Stock) pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable at the option of the holder for Indebtedness 



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or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof or must be purchased upon the occurrence of any
event, in whole or in part.


“REGISTERED HOLDER” means the
Person in whose name a Registered Security is registered in the Debt Security
Register (as defined in Section 2.07(a)).


“REGISTERED SECURITY” means any
Debt Security registered as to principal and interest in the Debt Security
Register (as defined in Section 2.07(a)).


“REGISTRAR” has the meaning set
forth in Section 2.07(a).


“REPRESENTATIVE” means the
trustee, agent or representative (if any) for an issue of Indebtedness.


“RESPONSIBLE OFFICER” when used
with respect to the Trustee, means any officer within the Corporate Trust
Office of the Trustee, including any Vice President, any trust officer or any
other officer of the Trustee performing functions similar to those performed by
the persons who at the time shall be such officers, and any other officer of
the Trustee to whom corporate trust matters are referred because of his
knowledge of and familiarity with the particular subject.


“SEC” means the U.S. Securities
and Exchange Commission.


“SECURED INDEBTEDNESS” means any
Indebtedness of the Company secured by a Lien. “SECURITIES ACT” means the
Securities Act of 1933, as amended.


“SENIOR INDEBTEDNESS” means, as
to any series of Debt Securities subordinated pursuant to the provisions of Article XII,
the Indebtedness of the Company identified as Senior Indebtedness in the
resolution of the Board of Directors and accompanying Officers’ Certificate or
supplemental indenture setting forth the terms of such Debt Securities.


“STATED MATURITY” means, with
respect to any security, the date specified in such security as the fixed date
on which the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency beyond the control of the
issuer unless such contingency has occurred).


“SUBORDINATED DEBT SECURITIES”
means any Debt Securities that are subordinated as contemplated by paragraph
(21) of the second paragraph of Section 2.03.


“SUBSIDIARY” of any Person means
any corporation, association, partnership 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 (i) such Person, (ii) such Person and one
or more Subsidiaries of such Person or (iii) one or more Subsidiaries of
such Person.


“TRADE PAYABLES” means, with
respect to any Person, any accounts payable or any Indebtedness or monetary
obligation to trade creditors created, assumed or Guaranteed by such Person
arising in the ordinary course of business of such Person in connection with
the acquisition of goods or services.


“TRUSTEE” initially means The
Bank of New York and any other Person or Persons appointed as such from time to
time pursuant to Section 7.08, and, subject to the provisions of Article VII,
includes its or their successors and assigns. If at any time there is more than
one such Person, “Trustee” as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to the Debt Securities of that
series.



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“TRUST INDENTURE ACT” (except as
herein otherwise expressly provided) means the Trust Indenture Act of 1939 as
in force at the date of this indenture as originally executed and, to the
extent required by law, as amended.


“UNITED STATES” means the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.


“U.S. GOVERNMENT OBLIGATIONS”
means securities that are (x) direct obligations of the United States for
the payment of which its full faith and credit is pledged or (y) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, which,
in either case, are not callable or redeemable at the option of the issuer
thereof.


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


Section 1.02. INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT. This Indenture is subject to the mandatory
provisions of the Trust Indenture Act which are incorporated by reference in
and made a part of this indenture. The following Trust Indenture Act terms have
the following meanings:


“INDENTURE SECURITIES” means the
Debt Securities.


“INDENTURE SECURITY HOLDER” means
a Holder. “INDENTURE TO BE QUALIFIED” means this Indenture.


“INDENTURE TRUSTEE” or “INSTITUTIONAL
TRUSTEE” means the Trustee.


“OBLIGOR” on the indenture
securities means the Company and any other obligor on the Debt Securities.


All other Trust Indenture Act
terms used in this Indenture that are defined by the Trust indenture Act,
reference to another statute or defined by rules of the Securities and
Exchange Commission have the meanings assigned to them by such definitions.


SECTION 1.03. RULES OF
CONSTRUCTION. Unless the context otherwise requires:


(1)             a
term has the meaning assigned to it;


(2)             an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP; “or” is not exclusive;


(3)             “including”
means including without limitation;


(4)             words
in the singular include the plural and words in the plural include the
singular;


(5)             if
the applicable series of Debt Securities are subordinated pursuant to Article XII,
unsecured indebtedness shall not be


(6)             deemed
to be subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured indebtedness;


(7)             the
principal amount of any noninterest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with GAAP; and


(8)             the
principal amount of any Preferred Stock shall be the greater of (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock.



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ARTICLE II


DEBT SECURITIES


SECTION 2.01. FORMS
GENERALLY. The Debt Securities of each series shall be in substantially the
form established without the approval of any Holder by or pursuant to a
resolution of the Board of Directors 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 the Company may deem appropriate (and, if not
contained in a supplemental indenture entered into in accordance with Article IX,
as are not prohibited by the provisions of this Indenture) or as may be
required or appropriate to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange on which
such series of Debt Securities may be listed, as determined by the Company, or
to conform to general usage, or as may, consistently herewith, be determined by
the officers executing such Debt Securities as evidenced by their execution of
the Debt Securities.


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


SECTION 2.02. FORM OF
TRUSTEE’S CERTIFICATE OF AUTHENTICATION. The Trustee’s Certificate of
Authentication on all Debt Securities authenticated by the Trustee shall be in
substantially the following form:


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


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


 


	
  

  	
   

  	
   

  
	
   

  	
   

  	
  AS TRUSTEE

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  AUTHORIZED
  SIGNATORY

  



 


SECTION 2.03. PRINCIPAL
AMOUNT; ISSUABLE IN SERIES. The aggregate principal amount of Debt Securities
which may be issued, executed, authenticated, delivered and outstanding under
this Indenture is unlimited.


The Debt Securities may be issued
in one or more series. There shall be established, without the approval of any
Holders, in or pursuant to a resolution of the Board of Directors and set forth
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series any
or all of the following:


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


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



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


(4)            the
rate or rates (which may be fixed or variable) at which the Debt Securities of
the series shall bear interest, if any, or the method of determining such rate
or rates, the date or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable, or the method by which
such date will be determined, the terms of any deferral of interest and the
additional interest, if any, thereon, the right, if any, of the Company to
extend the interest payment periods and the duration of the extensions and, in
the case of Registered Securities, the record dates for the determination of
Holders thereof to whom such interest is payable; and the basis upon which
interest will be calculated if other than that of a 360-day year of
twelve thirty-day months;


(5)            the
Place or Places of Payment, if any, in addition to or instead of the corporate
trust office of the Trustee where the principal of, and interest on, Debt
Securities of the series shall be payable;


(6)            the
price or prices at which, the period or periods within which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole
or in part, at the option of the Company or otherwise;


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


(8)            the
terms, if any, upon which the Debt Securities of the series may be convertible
into or exchanged for Common Stock, Preferred Stock (which may be represented
by depositary shares), other Debt Securities or warrants for Common Stock,
Preferred Stock or Indebtedness or other securities of any kind of the Company
or any other obligor and the terms and conditions upon which such conversion or
exchange shall be effected, including the initial conversion or exchange price
or rate, the conversion or exchange period and any other provision in addition
to or in lieu of those described herein;


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


(10)      if
the amount of principal of or any premium or interest on Debt Securities of the
series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts will be determined;


(11)      if
the principal amount payable at the Stated Maturity of Debt Securities of the
series will not be determinable as of any one or more dates prior to such
Stated Maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount thereof which
will be due and payable upon any maturity other than the Stated Maturity or
which will be deemed to be Outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined);
and the manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of Dollar Equivalent;


(12)      any
changes or additions to Article XI, including the addition of additional
covenants that may be subject to the covenant defeasance option pursuant to Section 11.02(b)(ii);


(13)      if
other than such coin or Currency of the United States as at the time of payment
is legal tender for payment of public and private debts, the coin or Currency
or Currencies or units of 



 9
 






 



 


two or more Currencies in which payment of the
principal of and premium, if any, and interest on, Debt Securities of the
series shall be payable;


(14)      if
other than the principal amount thereof, the portion of the principal amount of
Debt Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01 or provable
in bankruptcy pursuant to Section 6.02;


(15)      the
terms, if any, of the transfer, mortgage, pledge or assignment as security for
the Debt Securities of the series of any properties, assets, moneys, proceeds,
securities or other collateral, including whether certain provisions of the
Trust Indenture Act are applicable and any corresponding changes to provisions
of this Indenture as currently in effect;


(16)      any
addition to or change in the Events of Default with respect to the Debt
Securities of the series and any change in the right of the Trustee or the
Holders to declare the principal of and interest on, such Debt Securities due
and payable;


(17)      if
the Debt Securities of the series shall be issued in whole or in part in the
form of a Global Security or Securities, the terms and conditions, if any, upon
which such Global Security or Securities may be exchanged in whole or in part
for other individual Debt Securities in definitive registered form; and the
Depositary for such Global Security or Securities and the form of any legend or
legends to be borne by any such Global Security or Securities in addition to or
in lieu of the legend referred to in Section 2.15;


(18)      any
trustees, authenticating or paying agents, transfer agents or registrars;


(19)      the
applicability of, and any addition to or change in the covenants and
definitions currently set forth in this Indenture or in the terms currently set
forth in Article X, including conditioning any merger, conveyance,
transfer or lease permitted by Article X upon the satisfaction of an
Indebtedness coverage standard by the Company and Successor Company (as defined
in Article X);


(20)      the
terms, if any, of any Guarantee of the payment of principal of, and premium, if
any, and interest on, Debt Securities of the series and any corresponding
changes to the provisions of this Indenture as currently in effect;


(21)      the
subordination, if any, of the Debt Securities of the series pursuant to Article XII
and the terms of the subordination and any changes or additions to Article XII;


(22)      with
regard to Debt Securities of the series that do not bear interest, the dates
for certain required reports to the Trustee; and


(23)      any
other terms of the Debt Securities of the series (which terms shall not be
prohibited by the provisions of this Indenture).


All Debt Securities of any one
series appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors and as set forth in such Officers’
Certificate or in any such indenture supplemental hereto. All Debt Securities
of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board of Directors resolution, such Officers’ Certificate or
such supplemental indenture.


SECTION 2.04. EXECUTION OF
DEBT SECURITIES. The Debt Securities shall be signed on behalf of the Company
by its Chairperson of the Board, its Vice Chairperson, its Chief Executive
Officer, its President, any Vice President, its Chief Financial Officer, its
Treasurer, its Corporate Controller or its Secretary. Such signatures upon the
Debt Securities may be the manual or facsimile signatures of the present or any
future such authorized officers and may be imprinted or otherwise


 



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reproduced on the Debt Securities. The seal of the
Company, if any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.


Only such Debt Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, signed manually by the Trustee, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Debt Security executed by the Company shall
be conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder.


In case any officer of the
Company who shall have signed any of the Debt Securities shall cease to be such
officer before the Debt Securities so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of such Debt Security
or of the execution of this Indenture any such Person was not such officer.


SECTION 2.05. AUTHENTICATION
AND DELIVERY OF DEBT SECURITIES. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Debt
Securities of any series executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debt Securities to or upon a Company Order. In authenticating such Debt Securities
and accepting the additional responsibilities under this Indenture in relation
to such Debt Securities, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon:


(1)            a
copy of any resolution or resolutions of the Board of Directors, certified by
the Secretary or Assistant Secretary of the Company, authorizing the terms of
issuance of any series of Debt Securities;


(2)            an
executed supplemental indenture, if any;


(3)            an
Officers’ Certificate; and


(4)            an
Opinion of Counsel prepared in accordance with Section 13.05 substantially
to the effect that:


(a)             the
form of such Debt Securities has been duly authorized in conformity with the
provisions of this Indenture;


(b)            the
terms of such Debt Securities have been duly authorized in conformity with the
provisions of this Indenture;


(c)             such
Debt Securities, when authenticated and delivered by the Trustee and issued by
the Company in accordance with the provisions of this Indenture, delivered to
and duly paid for by the purchasers thereof, 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
as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer or
similar laws affecting the enforcement of creditors’ rights generally and (ii) equitable
principles of general applicability; and


(d)            the
Company has the corporate power to issue such Debt Securities and has duly
taken all necessary corporate action with respect to such issuance


Such Opinion of Counsel need
express no opinion as to the enforceability of Section 7.06 or as to
whether a court in the United States would render a money judgment in a
currency other than that of 



 11
 






 



 


the United States. Such counsel may rely on opinions of
other counsel (copies of which shall be delivered to the Trustee), and, to the
extent such opinion involves factual matters, such counsel may rely upon
certificates of officers of the Company and certificates of public officials.


The Trustee shall have the right
to decline to authenticate and deliver any Debt Securities under this Section 2.05
if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors, trustees or
vice presidents shall determine that such action would expose the Trustee to
personal liability to existing Holders.


The Trustee may appoint an
authenticating agent reasonably acceptable to the Company to authenticate Debt
Securities of any series. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debt Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, paying agent or agent for service of notices and
demands.


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


SECTION 2.06. DENOMINATION
OF DEBT SECURITIES. Unless otherwise provided in the form of Debt Security for
any series, the Debt Securities of each series shall be issuable only as
Registered Securities in such denominations as shall be specified or
contemplated by Section 2.03. In the absence of any such specification
with respect to the Debt Securities of any series, the Debt Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.


SECTION 2.07. REGISTRATION
OF TRANSFER AND EXCHANGE. (a) The Company shall keep or cause to be kept a
register for each series of Registered Securities issued hereunder (hereinafter
collectively referred to as the “Debt Security Register”), in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the transfer of Registered
Securities as in this Article II provided. At all reasonable times the
Debt Security Register shall be open for inspection by the Trustee. Subject to Section 2.15,
upon due presentment for registration of transfer of any Registered Security at
any office or agency to be maintained by the Company in accordance with the
provisions of Section 4.02, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of authorized denominations
for a like aggregate principal amount.


Unless and until otherwise
determined by the Company by resolution of the Board of Directors, the register
of the Company for the purpose of registration, exchange or registration of
transfer of the Registered Securities shall be kept at the corporate trust
office of the Trustee and, for this purpose, the Trustee shall be designated “Registrar”.


Registered Securities of any
series (other than a Global Security) may be exchanged for a like aggregate
principal amount of Registered Securities of the same series of other
authorized denominations. Subject to Section 2.15, Registered Securities
to be exchanged shall be surrendered at the office or agency to be maintained
by the Company as provided in Section 4.02, and the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor the
Registered Security or Registered Securities which the Holder making the
exchange shall be entitled to receive.


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



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


No service charge shall be made
for any exchange or registration of transfer of Debt Securities (except as
provided by Section 2.09), but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto, other than those expressly provided in this Indenture to be
made at the Company’s own expense or without expense or without charge to the
Holders.


The Company shall not be required
(a) to issue, register the transfer of or exchange any Debt Securities for
a period of 15 days next preceding any mailing of notice of redemption of Debt
Securities of such series or (b) to register the transfer of or exchange
any Debt Securities selected, called or being called for redemption.


Prior to the due presentation for
registration of transfer of any Debt Security, the Company, the Trustee, any
paying agent or any Registrar may deem and treat the Person in whose name a
Debt Security is registered as the absolute owner of such Debt Security for the
purpose of receiving payment of principal of, and premium, if any, and interest
on, such Debt Security and for all other purposes whatsoever, whether or not
such Debt Security is overdue, and none of the Company, the Trustee, any paying
agent or Registrar shall be affected by notice to the contrary. The foregoing
shall not preclude the Trustee from relying on any proxy received from any
registered Holder.


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


SECTION 2.08. TEMPORARY DEBT
SECURITIES. Pending the preparation of definitive Debt Securities of any
series, the Company may execute and the Trustee shall authenticate and deliver
temporary Debt Securities (printed, lithographed, photocopied, typewritten or
otherwise produced) of any authorized denomination, and substantially in the
form of the definitive Debt Securities in lieu of which they are issued, in
registered form and with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company with the concurrence of the Trustee. Temporary Debt Securities may
contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Debt Security shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Debt Securities.


If temporary Debt Securities of
any series are issued, the Company will cause definitive Debt Securities of
such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the temporary Debt Securities of
such series shall be exchangeable for definitive Debt Securities of such series
upon surrender of the temporary Debt Securities of such series at the office or
agency of the Company at a Place of Payment for such series, without charge to
the Holder thereof, except as provided in Section 2.07 in connection with
a transfer, and upon surrender for cancellation of any one or more temporary
Debt Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and
of like tenor. Until so exchanged, temporary Debt Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of such series, except as otherwise specified as
contemplated by Section 2.03(17) with respect to the payment of interest
on Global Securities in temporary form.


Upon any exchange of a portion of
a temporary Global Security for a definitive Global Security or for the
individual Debt Securities represented thereby pursuant to Section 2.07 or
this Section 2.08, the temporary Global Security shall be endorsed by the
Trustee to reflect the reduction of the principal amount evidenced thereby,
whereupon the principal 



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amount of such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed.


SECTION 2.09. MUTILATED,
DESTROYED, LOST OR STOLEN DEBT SECURITIES. If (i) any mutilated Debt
Security is surrendered to the Trustee at its corporate trust office (in the
case of Registered Securities) or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and any paying
agent harmless, and neither the Company nor the Trustee receives notice that
such Debt Security has been acquired by a bona fide purchaser, then the Company
shall execute and, upon a Company Order, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security, a new Debt Security of the same series of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any substituted Debt Security, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security which has matured or is
about to mature or which has been called for redemption shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish the Company and the Trustee with such
security or indemnity as either may require to save it harmless from all risk,
however remote, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debt Security and of the ownership thereof.


Every substituted Debt Security
of any series issued pursuant to the provisions of this Section 2.09 by
virtue of the fact that any Debt Security is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debt Security shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series duly
issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities,
and shall preclude any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.


SECTION 2.10. CANCELLATION
OF SURRENDERED DEBT SECURITIES. All Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the
Company or any paying agent or a Registrar, be delivered to the Trustee for
cancellation by it, or if surrendered to the Trustee, shall be canceled by it,
and no Debt Securities shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. All canceled Debt Securities held
by the Trustee shall be destroyed (subject to applicable record retention
requirements of the Exchange Act or other law that may be applicable) and
certification of their destruction delivered to the Company, unless otherwise
directed. On request of the Company, the Trustee shall deliver to the Company
canceled Debt Securities held by the Trustee. If the Company shall acquire any
of the Debt Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented thereby unless and
until the same are delivered or surrendered to the Trustee for cancellation.
The Company may not issue new Debt Securities to replace Debt Securities it has
redeemed, paid or delivered to the Trustee for cancellation.


SECTION 2.11. PROVISIONS OF
THE INDENTURE AND DEBT SECURITIES FOR THE SOLE BENEFIT OF THE PARTIES AND THE
HOLDERS. Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give or be construed to give to any Person, other than the
parties hereto, the Holders or any Registrar or paying agent, any legal or
equitable right, remedy or claim 



 14
 






 



 


under or in respect of this Indenture, or under any
covenant, condition or provision herein contained except as provided in Section 12
herein; all its covenants, conditions and provisions being for the sole benefit
of the parties hereto, the Holders and any Registrar and paying agents.


SECTION 2.12. PAYMENT OF
INTEREST; RIGHTS PRESERVED. (a) Interest on any Registered Security that
is payable and is punctually paid or duly provided for on any interest payment
date shall be paid to the Person in whose name such Registered Security is
registered at the close of business on the regular record date for such
interest notwithstanding the cancellation of such Registered Security upon any
transfer or exchange subsequent to the regular record date. Payment of interest
on Registered Securities shall be made at the corporate trust office of the
Trustee (except as otherwise specified pursuant to Section 2.03), or at
the option of the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Debt Security Register or,
if provided pursuant to Section 2.03 and in accordance with arrangements
satisfactory to the Trustee, at the option of the Registered Holder by wire
transfer to an account designated by the Registered Holder.


(b) Subject to the foregoing
provisions of this Section 2.12 and Section 2.17, each Debt Security
of a particular series delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Debt Security of the
same series shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Debt Security.


SECTION 2.13. SECURITIES
DENOMINATED IN FOREIGN CURRENCIES.


(a) Except as otherwise
specified pursuant to Section 2.03 for Registered Securities of any
series, payment of the principal of, and premium, if any, and interest on,
Registered Securities of such series will be made in Dollars.


(b) For the purposes of
calculating the principal amount of Debt Securities of any series denominated
in a Foreign Currency or in units of two or more Foreign Currencies for any purpose
under this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal
amount as of the date of any such calculation.


In the event any Foreign Currency
or currencies or units of two or more Currencies in which any payment with
respect to any series of Debt Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter
on which payment of principal of, or premium, if any, or interest on, the Debt
Securities of a series is due, the Company shall select the Currency of payment
for use on such date, all as provided in the Debt Securities of such series. In
such event, the Company shall, as provided in the Debt Securities of such
series, notify the Trustee of the Currency which it has selected to constitute
the funds necessary to meet the Company’s obligations or such payment date and
of the amount of such Currency to be paid. Such amount shall be determined as
provided in the Debt Securities of such series. The payment to the Trustee with
respect to such payment date shall be made by the Company solely in the
Currency so selected.


SECTION 2.14. WIRE
TRANSFERS. Notwithstanding any other provision to the contrary in this
Indenture, the Company may make any payment of monies required to be deposited
with the Trustee on account of principal of, or premium, if any, or interest
on, the Debt 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
such moneys are to be paid to the Holders of the Debt Securities in accordance
with the terms hereof.


SECTION 2.15. SECURITIES
ISSUABLE IN THE FORM OF A GLOBAL SECURITY. (a) If the Company shall
establish pursuant to Sections 2.01 and 2.03 that the Debt Securities of a
particular 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 or its
agent shall, in accordance with Section 2.05, authenticate and deliver,
such Global Security or Securities, which (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, the
Outstanding Debt Securities of such series 



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to be represented by such Global Security or Securities,
or such portion thereof as the Company shall specify in an Officers’
Certificate, (ii) shall be registered in the name of the Depositary for
such Global Security or securities or its nominee, (iii) shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositary’s instruction and (iv) shall bear a legend substantially to the
following effect: “Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary”, or such other legend as may then be
required by the Depositary for such Global Security or Securities.


(b) Notwithstanding any
other provision of this Section 2.15 or of Section 2.07 to the
contrary, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be
exchanged in whole or in part for definitive Debt Securities in registered
form, a Global Security may be transferred, in whole but not in part and in the
manner provided in Section 2.07, only by the Depositary to a nominee of
the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.


(c) If at any time the
Depositary for a Global Security or Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or
Securities or if at any time the Depositary for the Debt Securities for such
series shall no longer be eligible or in good standing under the Exchange Act
or other applicable statute, rule or regulation, the Company shall appoint
a successor Depositary with respect to such Global Security or Securities. If a
successor Depositary for such Global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company shall execute, and the Trustee or its
agent, upon receipt of a Company Order for the authentication and delivery of
such individual Debt Securities of such series in exchange for such Global
Security, will authenticate and deliver, individual Debt Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for
such Global Security or securities.


The Company may at any time and
in its sole discretion determine that the Debt Securities of any series or
portion thereof issued or issuable in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Debt Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of such series or portion thereof in exchange for such
Global Security or Securities.


If specified by the Company
pursuant to Sections 2.01 and 2.03 with respect to Debt Securities issued or
issuable in the form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
individual Debt Securities of such series of like tenor and terms in definitive
form on such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon the Company shall execute, and the Trustee or its agent upon receipt
of a Company Order for the authentication and delivery of definitive Debt
Securities of such series shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depositary a new Debt
Security or Securities of the same series of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Persons beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like
tenor and terms and in an authorized denomination equal to the difference, if 



 16
 






 



 


any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Debt Securities delivered
to Holders thereof.


In any exchange provided for in
any of the preceding three paragraphs, the Company will execute and the Trustee
or its agent will authenticate and deliver individual Debt Securities. Upon the
exchange of the entire principal amount of a Global Security for individual
Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Registered Securities
issued in exchange for a Global Security pursuant to this Section 2.15
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or the
Registrar. The Trustee or the Registrar shall deliver such Registered
Securities to the Persons in whose names such Registered Securities are so
registered.


Payments in respect of the
principal of and interest on any Debt Securities registered in the name of the
Depositary or its nominee will be payable to the Depositary or such nominee in
its capacity as the registered owner of such Global Security. The Company and
the Trustee may treat the Person in whose name the Debt Securities, including
the Global Security, are registered as the owner thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever. None of
the Company, the Trustee, any Registrar, the paying agent or any agent of the
Company or the Trustee will have any responsibility or liability for (a) any
aspect of the records relating to or payments made on account of the beneficial
ownership interests of the Global Security by the Depositary or its nominee or
any of the Depositary’s direct or indirect participants, or for maintaining,
supervising or reviewing any records of the Depositary, its nominee or any of
its direct or indirect participants relating to the beneficial ownership
interests of the Global Security, (b) the payments to the beneficial
owners of the Global Security of amounts paid to the Depositary or its nominee,
or (c) any other matter relating to the actions and practices of the
Depositary, its nominee or any of its direct or indirect participants. None of
the Company, the Trustee or any such agent will be liable for any delay by the
Depositary, its nominee, or any of its direct or indirect participants in
identifying the beneficial owners of the Debt Securities, and the Company and
the Trustee may conclusively rely on, and will be protected in relying on,
instructions from the Depositary or its nominee for all purposes (including
with respect to the registration and delivery, and the respective principal
amounts, of the Debt Securities to be issued).


SECTION 2.16. MEDIUM TERM SECURITIES.
Notwithstanding any contrary provision herein, if all Debt Securities of a
series are not to be originally issued at one time, it shall not be necessary
for the Company to deliver to the Trustee an Officers’ Certificate, resolutions
of the Board of Directors, supplemental indenture, Opinion of Counsel or
written order or any other document otherwise required pursuant to Section 2.01,
2.03, 2.05 or 13.05 at or prior to the time of authentication of each Debt
Security of such series if such documents are delivered to the Trustee or its
agent at or prior to the authentication upon original issuance of the first
such Debt Security of such series to be issued; PROVIDED, HOWEVER, that any
subsequent request by the Company to the Trustee to authenticate Debt
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company (and, if requested by the Trustee,
shall expressly state) that, as of the date of such request, the statements
made in the Officers’ Certificate delivered pursuant to Section 2.05 or
13.05 shall be true and correct as if made on such date and that the Opinion of
Counsel delivered at or prior to such time of authentication of an original
issuance of Debt Securities shall specifically state that it shall relate to
all subsequent issuances of Debt Securities of such series that are identical
to the Debt Securities issued in the first issuance of Debt Securities of such
series.


A Company Order delivered by the
Company to the Trustee in the circumstances set forth in the preceding
paragraph may provide that Debt Securities which are the subject thereof will
be authenticated and delivered by the Trustee or its agent on original issue
from time to time upon the telephonic or written order of Persons designated in
such written order (any such telephonic instructions to be promptly confirmed
in writing by such Person) and that such Persons are authorized 



 17
 






 



 


to determine, consistent with the Officers’ Certificate,
supplemental indenture or resolution of the Board of Directors relating to such
written order, such terms and conditions of such Debt Securities as are
specified in such Officers’ Certificate, supplemental indenture or such
resolution.


SECTION 2.17. DEFAULTED
INTEREST. Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for, on the dates and in
the manner provided in the Debt Securities of such series and in this Indenture
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
Registered Holder thereof on the relevant record date by virtue of having been
such Registered Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case (as between clauses (i) and (ii) below),
as provided in clause (i) or (ii) below:


(i)               The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Registered Securities of such series are registered at the
close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each such Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Holder thereof at its 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 Registered Securities of such series are
registered at the close of business on such special record date.


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


SECTION 2.18. JUDGMENTS. The
Company may provide pursuant to Section 2.03 for Debt Securities of any
series that (a) the obligation, if any, of the Company to pay the
principal of, and premium, if any, and interest on, the Debt Securities of any
series in a Foreign Currency or Dollars (the “Designated Currency”) as may be
specified pursuant to Section 2.03 is of the essence and agrees that, to
the fullest extent possible under applicable law, judgments in respect of Debt
Securities of such series shall be given in the Designated Currency; (b) the
obligation of the Company to make payments in the Designated Currency of the principal
of, and premium, if any, and interest on, such Debt Securities shall,
notwithstanding any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
Currency (after any premium and cost exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of 



 18
 






 



 


a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.


ARTICLE III


REDEMPTION OF
DEBT SECURITIES


SECTION 3.01. APPLICABILITY
OF ARTICLE. The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their Stated Maturity
except as otherwise specified as contemplated by Section 2.03 for Debt
Securities of such series.


SECTION 3.02. NOTICE OF
REDEMPTION; SELECTION OF DEBT SECURITIES. In case the Company shall desire to
exercise the right to redeem all or, as the case may be, any part of the Debt
Securities of any series, the Company shall fix a date for redemption and shall
give notice of such redemption at least 30 and not more than 60 days prior to
the date fixed for redemption to the Holders of Debt Securities of such series
so to be redeemed as a whole or in part, in the manner provided in Section 13.03.
The notice if given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice or any defect in the notice to
the Holder of any Debt Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debt Security of such series.


Each such notice of redemption
shall specify (i) the date fixed for redemption, (ii) the redemption
price at which Debt Securities of such series are to be redeemed, (iii) the
Place or Places of Payment that payment will be made upon presentation and
surrender of such Debt Securities, (iv) that any interest accrued to the
date fixed for redemption will be paid as specified in said notice, (v) that
the redemption is for a sinking fund payment (if applicable), (vi) that,
unless the Company defaults on making such redemption payment or unless the
Debt Securities of that series are subordinated pursuant to the terms of Article XII
and the paying agent is prohibited from making such payment pursuant to the
terms of this Indenture, on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue, (vii) that in the
case of Original Issue Discount Securities original issue discount accrued
after the date fixed for redemption will cease to accrue, (viii) the terms
of the Debt Securities of that series pursuant to which the Debt Securities of
that series are being redeemed and (ix) that no representation is made as
to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Debt Securities of that series. If less than all the
Debt Securities of a series are to be redeemed the notice of redemption shall
specify the CUSIP numbers of the Debt Securities of that series to be redeemed.
In case any Debt Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Debt Security, a new Debt Security or Debt Securities of
that series in principal amount equal to the unredeemed portion thereof.


At least 60 days before the
redemption date unless the Trustee consents to a shorter period, the Company
shall give notice to the Trustee of the redemption date, the principal amount
of Debt Securities to be redeemed and the series and terms of the Debt
Securities pursuant to which such redemption will occur. Such notice shall be
accompanied by an Officers’ Certificate and an Opinion of Counsel from the
Company to the effect that such redemption will comply with the conditions
herein. If fewer than all the Debt Securities of a series are to be redeemed,
the record date relating to such redemption shall be selected by the Company
and given to the Trustee, which record date shall be not less than 15 days
after the date of notice to the Trustee.



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Prior to 10:00 am on the
redemption date for any Registered Securities, the Company shall deposit with
the Trustee or with a paying agent (or, if the Company is acting as its own
paying agent, segregate and hold in trust) an amount of money in the Currency
in which such Debt Securities are denominated (except as provided pursuant to Section 2.03)
sufficient to pay the redemption price of such Registered Securities or any portions
thereof that are to be redeemed on that date.


If less than all the Debt
Securities of like tenor and terms of a series are to be redeemed (other than
pursuant to mandatory sinking fund redemptions) the Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Debt Securities of that series or portions thereof (in multiples of $1,000) to
be redeemed. In any case where more than one Registered Security of such series
is registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Registered Security of such series. The Trustee shall promptly notify the
Company in writing of the Debt Securities selected for redemption and, in the
case of any Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed. If any Debt Security called for redemption shall
not be so paid upon surrender thereof on such redemption date, the principal,
premium, if any, and interest shall bear interest until paid from the
redemption date at the rate borne by the Debt Securities of that series. If
less than all the Debt Securities of unlike tenor and terms of a series are to
be redeemed, the particular Debt Securities to be redeemed shall be selected by
the Company. Provisions of this Indenture that apply to Debt Securities called
for redemption also apply to portions of Debt Securities called for redemption.


SECTION 3.03. PAYMENT OF
DEBT SECURITIES CALLED FOR REDEMPTION. If notice of redemption has been given
as provided in Section 3.02, the Debt Securities or portions of Debt
Securities of the series with respect to which such notice has been given shall
become due and payable on the date and at the Place or Places of Payment stated
in such notice at the applicable redemption price, together with any interest
accrued to the date fixed for redemption, and on and after said date (unless
the Company shall default in the payment of such Debt Securities at the
applicable redemption price, together with any interest accrued to said date)
any interest on the Debt Securities or portions of Debt Securities of any
series so called for redemption shall cease to accrue and any original issue
discount in the case of Original Issue Discount Securities shall cease to
accrue and such Debt Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Debt Securities
except the right to receive the redemption price thereof and unpaid interest to
the date fixed for redemption. On presentation and surrender of such Debt
Securities at the Place or Places of Payment in said notice specified, the said
Debt Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption.


Any Debt Security that is to be
redeemed only in part shall be surrendered at the corporate trust office or
such other office or agency of the Company as is specified pursuant to Section 2.03,
if the Company, the Registrar or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like
tenor and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered; except that if a Global
Security is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depositary for such Global Security, without
service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered. In the case of a Debt Security providing appropriate space for
such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt


 



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Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.


SECTION 3.04. MANDATORY AND
OPTIONAL SINKING FUNDS. The minimum amount of any sinking fund payment provided
for by the terms of Debt Securities of any series, resolution of the Board of
Directors or a supplemental indenture 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 Debt Securities of any series, resolution of the
Board of Directors or a supplemental indenture is herein referred to as an “optional
sinking fund payment”.


In lieu of making all or any part
of any mandatory sinking fund payment with respect to any Debt Securities of a
series in cash, the Company may at its option (a) deliver to the Trustee
Debt Securities of that series theretofore purchased or otherwise acquired by
the Company or (b) receive credit for the principal amount of Debt
Securities of that series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Debt Securities, resolution or supplemental indenture; PROVIDED, that
such Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Debt Securities, resolution or supplemental
indenture for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.


SECTION 3.05. REDEMPTION OF
DEBT SECURITIES FOR SINKING FUND. Not less than 60 days prior to each sinking
fund payment date for any series of Debt Securities, the Company will deliver
to the Trustee an Officers’ Certificate (which need not contain the statements
required by Section 13.05) specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, any
resolution or supplemental indenture, 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 Debt Securities of that series pursuant
to this Section 3.05 (which Debt Securities, if not previously redeemed,
will accompany such certificate) and whether the Company intends to exercise
its right to make any permitted optional sinking fund payment with respect to
such series. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Company to deliver such certificate (or to deliver the
Debt Securities specified in this paragraph) shall not constitute a Default,
but such failure shall require that the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Debt
Securities subject to a mandatory sinking fund payment without the option to
deliver or credit Debt Securities as provided in this Section 3.05 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.


Any sinking fund payment or
payments (mandatory or optional) made in cash plus any unused balance of any
preceding sinking fund payments made in cash which shall equal or exceed
$50,000 (or a lesser sum if the Company shall so request) with respect to the
Debt Securities of any particular series shall be applied by the Trustee on the
sinking fund payment date on which such payment is made (or, if such payment is
made before a sinking fund payment date, on the sinking fund payment date
following the date of such payment) to the redemption of such Debt Securities
at the Redemption Price specified in such Debt Securities, resolution or
supplemental indenture for operation of the sinking fund together with any accrued
interest to the date fixed for redemption. Any sinking fund moneys not so
applied or allocated by the Trustee to the redemption of Debt Securities shall
be added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section 3.05. Any and all sinking fund moneys with
respect to the Debt Securities of any particular series held by the Trustee on
the last



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sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of
particular Debt Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the
payment of the principal of the Debt Securities of that series at its Stated
Maturity.


The Trustee shall select the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in the last paragraph of Section 3.02 and the Company shall
cause notice of the redemption thereof to be given in the manner provided in Section 3.02
except that the notice of redemption shall also state that the Debt Securities
are being redeemed by operation of the sinking fund. Such notice having been
duly given, the redemption of such Debt Securities shall be made upon the terms
and in the manner stated in Section 3.03.


At least one business day before
each sinking fund payment date, the Company shall pay to the Trustee (or, if
the Company is acting as its own paying agent, the Company shall segregate and
hold in trust) in cash a sum in the Currency in which the Debt Securities of
such series are denominated (except as provided pursuant to Section 2.03)
equal to any interest accrued to the date fixed for redemption of Debt
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 3.05.


The Trustee shall not redeem any
Debt Securities of a series with sinking fund moneys or mail any notice of
redemption of such Debt Securities by operation of the sinking fund for such
series during the continuance of a Default in payment of interest on such Debt
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to such Debt Securities,
except that if the notice of redemption of any such Debt Securities shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Debt Securities if cash sufficient for that purpose
shall be deposited with the Trustee for that purpose in accordance with the
terms of this Article III. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default
shall occur and any moneys thereafter paid into such sinking fund shall, during
the continuance of such Default or Event of Default, be held as security for
the payment of such Debt Securities; PROVIDED, HOWEVER, that in case such Event
of Default or Default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund payment date for
such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.05.


ARTICLE IV


PARTICULAR
COVENANTS OF THE COMPANY


Section 4.01. PAYMENT OF
PRINCIPAL OF, AND PREMIUM, IF ANY, AND INTEREST ON, DEBT SECURITIES. The
Company, for the benefit of each series of Debt Securities, will duly and
punctually pay or cause to be paid the principal of, and premium, if any, and
interest on, each of the Debt Securities at the place, at the respective times
and in the manner provided herein and in the Debt Securities. Each installment
of interest on the Debt Securities may at the Company’s option be paid by
mailing checks for such interest payable to the Person entitled thereto to the
address of such Person as it appears on the Debt Security Register maintained
pursuant to Section 2.07 (a).


Principal, premium and interest
of Debt Securities of any series shall be considered paid on the date due if on
such date the Trustee or any paying agent holds in accordance with this
Indenture money sufficient to pay in the Currency in which the Debt Securities
of such series are denominated (except as provided pursuant to Section 2.03)
all principal, premium and interest then due and, in the case of Debt
Securities subordinated pursuant to the terms of Article XII, the Trustee
or such paying agent, as the case may be, is not prohibited from paying such
money to the Holders on that date pursuant to the terms of the Indenture.



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The Company shall pay interest on
overdue principal at the rate specified therefor in the Debt Securities and it
shall pay interest on overdue installments of interest at the same rate to the
extent lawful.


SECTION 4.02. MAINTENANCE OF
OFFICES OR AGENCIES FOR REGISTRATION OF TRANSFER, EXCHANGE AND PAYMENT OF DEBT
SECURITIES. The Company will maintain in each Place of Payment for any series
of Debt Securities, an office or agency where Debt Securities of such series
may be presented or surrendered for payment, where Debt Securities of such
series may be surrendered for transfer or exchange and where notices and
demands to or upon the Company in respect of the Debt Securities of such series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the corporate trust office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.


The Company may also from time to
time designate different or additional offices or agencies to be maintained for
such purposes (in or outside of such Place of Payment), and may from time to
time rescind any such designation; PROVIDED, HOWEVER, that no such designation
or rescission shall in any manner relieve the Company of its obligations
described in the preceding paragraph. The Company will give prompt written
notice to the Trustee of any such additional designation or rescission of
designation and any change in the Location of any such different or additional
office or agency.


SECTION 4.03. APPOINTMENT TO
FILL A VACANCY IN THE OFFICE OF TRUSTEE. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.08, a Trustee, so that there shall at all times be a
Trustee hereunder with respect to each series of Debt Securities.


SECTION 4.04. DUTIES OF
PAYING AGENTS, ETC. (a) The Company shall cause each paying agent, if any,
other than the Trustee, to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of
this Section 4.04,


(i)               that
it will hold all sums held by it as such agent for the payment of the principal
of, and premium, if any, or interest on, the Debt Securities of any series
(whether such sums have been paid to it by the Company or by any other obligor
on the Debt Securities of such series) in trust for the benefit of the Holders
of the Debt Securities of such series;


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


(iii)         that it will at any time during the
continuance of an Event of Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held by it as such agent.


(b) If the Company shall act
as its own paying agent, it will, on or before each due date of the principal
of, and premium, if any, or interest on, the Debt Securities if any, of any
series, set aside, segregate and hold in trust for the benefit of the Holders
of the Debt Securities of such series a sum sufficient to pay such principal,
premium, if any, or interest so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action.


(c) Anything in this Section 4.04
to the contrary notwithstanding, the Company may, at any time, for the purpose
of obtaining a satisfaction and discharge with respect to one or more or all
series of Debt Securities, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust 



 23
 






 



by it or any paying agent, as required by this Section 4.04,
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.


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


(e) Anything in this Section 4.04
to the contrary notwithstanding, the agreement to hold sums in trust as
provided in this Section 4.04 is subject to the provisions of Section 11.05


SECTION 4.05. STATEMENT BY
OFFICERS AS TO DEFAULT. The Company will deliver to the Trustee, on or before a
date not more than 60 days after the end of each quarter and not more than four
months after the end of each fiscal year of the Company ending after the date
hereof, an Officers’ Certificate stating, as to each officer signing such
certificate, that (i) in the course of his performance of his duties as an
officer of the Company he would normally have knowledge of any Default, (ii) whether
or not to the best of his knowledge any Default occurred during such year and (iii) if
to the best of his knowledge the Company is in Default, specifying all such
Defaults and what action the Company is taking or proposes to take with respect
thereto. As of the date hereof, the Company’s fiscal year ends on December 31.
The Company also shall comply with Section 314(a)(4) of the Trust
Indenture Act.


SECTION 4.06. EXISTENCE.
Subject to Article X, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence.


SECTION 4.07. MAINTENANCE OF
PROPERTIES. The Company will cause all properties used or useful in the conduct
of its business to be maintained and kept in good condition, repair and working
order in all material respects and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on by the
Company and its subsidiaries may be properly and advantageously conducted at
all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent
the Company or a Subsidiary from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the judgment of the
Company, not materially detrimental to the conduct of the business of the
Company and its Subsidiaries, taken as a whole, and not disadvantageous in any
material respect to the Holders.


SECTION 4.08. PAYMENT OF
TAXES AND OTHER CLAIMS. The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon the property of the Company
or any Subsidiary, PROVIDED, HOWEVER, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.


ARTICLE V


HOLDERS’ LISTS AND REPORTS


BY THE COMPANY
AND THE TRUSTEE


SECTION 5.01. COMPANY TO
FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF HOLDERS; PRESERVATION
OF INFORMATION. The Company covenants and



 24
 






 



agrees that it will furnish or cause to be furnished
to the Trustee with respect to the Registered Securities of each series:


(a) not more than 15 days
after each record date with respect to the payment of interest, if any, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Registered Holders as of such record date, 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 as of a date not more than 15 days prior to the
time such list is furnished;


PROVIDED, HOWEVER, that so long
as the Trustee shall be the Registrar, such lists shall not be required to be
furnished.


The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and addresses of the Holders (1) contained in the most recent list
furnished to it as provided in this Section 5.01 or (2) received by
it in the capacity of paying agent or Registrar (if so acting) hereunder.


SECTION 5.02. COMMUNICATIONS
TO HOLDERS. Holders may communicate pursuant to Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or the Debt Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the Trust
Indenture Act.


SECTION 5.03. REPORTS BY
COMPANY. (a) The Company shall comply with TIA Section 314(a).


(b) The Company covenants
and agrees to file with the Trustee and the Securities and Exchange Commission,
in accordance with the rules and regulations prescribed from time to time
by said Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.


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


SECTION 5.04. REPORTS BY
TRUSTEE. The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the time and in the manner provided pursuant thereto.


Reports pursuant to this Section 5.04
shall be transmitted by mail:


(1)            to
all Registered Holders, as the names and addresses of such Holders appear in
the Debt Security Register;


(2)            except
in the cases of reports under Section 313(b)(2) of the Trust
Indenture Act, to each holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 5.02.


A copy of each report at the time
of its mailing to Holders shall be filed with the Securities and Exchange
Commission and each stock exchange (if any) on which the Debt Securities of any
series are listed. The Company agrees to notify promptly the Trustee whenever
the Debt Securities of any series become listed on any securities exchange and
of any delisting thereof.



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SECTION 5.05. RECORD DATES
FOR ACTION BY HOLDERS. If the Company shall solicit from the Holders of Debt
Securities of any series any action (including the making of any demand or
request, the giving of any direction, notice, consent or waiver or the taking
of any other action), the Company may, at its option, by resolution of the
Board of Directors, fix in advance a record date for the determination of
Holders of Debt Securities entitled to take such action, but the Company shall
have no obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Debt Securities of
record at the close of business on such record date shall be deemed to be
Holders of Debt Securities for the purpose of determining whether Holders of
the requisite proportion of Debt Securities of such series Outstanding have
authorized or agreed or consented to such action, and for that purpose the Debt
Securities of such series Outstanding shall be computed as of such record date.


ARTICLE VI


REMEDIES OF THE
TRUSTEE AND HOLDERS IN EVENT OF DEFAULT


SECTION 6.01. EVENTS OF
DEFAULT. If any one or more of the following shall have occurred and be
continuing with respect to Debt Securities of any series (each of the
following, an “Event of Default”):


(a) default in the payment
of any installment of interest upon any Debt Securities of that series as and
when the same shall become due and payable, whether or not such payment shall
be prohibited by Article XII, if applicable, and continuance of such
default for a period of 30 days; or


(b) default in the payment
of the principal of or premium, if any, on any Debt Securities of that series
as and when the same shall become due and payable, whether at maturity, upon
redemption, by declaration, upon required repurchase or otherwise, whether or
not such payment shall be prohibited by Article XII, if applicable; or


(c) default in the payment
of any sinking fund payment with respect to any Debt Securities of that series
as and when the same shall become due and payable; or


(d) failure on the part of
the Company to comply with Article X; or


(e) failure on the part of
the Company duly to observe or perform any other of the covenants or agreements
on the part of the Company in the Debt Securities of that series, in this
Indenture with respect to such series or in any supplemental indenture with
respect to such series (other than a covenant a default in the performance of
which is elsewhere in this Section specifically dealt with), continuing
for a period of 60 days after the date on which written notice specifying such
failure and requiring the Company to remedy the same shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time Outstanding; or


(f) the Company shall,
pursuant to or within the meaning of any Bankruptcy Law, (i) voluntarily
commence any case, (ii) consent to the entry of an order for relief
against it in an involuntary case, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian or similar official for the
Company or for a substantial part of its property, (iv) make a general
assignment for the benefit of creditors or (v) take any comparable action
under any foreign laws relating to insolvency; or


(g) the entry of an order or
decree under any Bankruptcy Law by a court having competent jurisdiction for (i) relief
in respect of the Company or a substantial part of its property, (ii) the
appointment of a receiver, trustee, custodian or similar official for the
Company or for a substantial part of its property or (iii) the winding-up
or liquidation of the Company; and such order or decree



 26
 






 



shall continue unstayed and in effect for 60
consecutive days; or any similar relief is granted under any foreign laws and
the order or decree stays in effect for 60 consecutive days; or


(h) any other event of
default provided under the terms of the Debt Securities of that series (as set
forth in or pursuant to the applicable supplemental indenture or Officer’s
Certificate establishing such terms, as provided in Section 2.03);


then and in each and every case that an Event of Default
(other than an Event of Default specified in Section 6.01(f) or (g))
with respect to Debt Securities of that series at the time outstanding occurs
and is continuing, unless the principal of and interest on all the Debt
Securities of that series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Debt Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders), may declare the
principal of (or, if the Debt Securities of that series are original issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series), premium, if any, and accrued and unpaid
interest on all the Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding. If an
Event of Default specified in Section 6.01(f) or (g) occurs, the
principal amount of (or, if the Debt Securities of that series are original
issue Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series), premium, if any, and accrued and unpaid
interest on all the Debt Securities of each series 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.


The Holders of a majority in
principal amount of the Debt Securities of a particular series by notice to the
Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree already rendered and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. Upon
any such rescission, the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no proceeding had been taken.


In case the Trustee or any Holder
shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee or such Holder, then and in every such case the
parties hereto shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the parties hereto
shall continue as though no such proceeding had been taken.


The foregoing Events of Default
shall constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.


The Company shall deliver to the
Trustee, within 30 days after the occurrence thereof, written notice in the
form of an Officers’ Certificate of any event which with the giving of notice
and the lapse of time would become an Event of Default under clause (d), (e),
(f), (g) or (h), its status and what action the Company is taking or
proposes to take with respect thereto.



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SECTION 6.02. COLLECTION OF
INDEBTEDNESS BY TRUSTEE, ETC. If an Event of Default occurs and is continuing,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid or enforce the
performance of any provision of the Debt Securities of the affected series or
this Indenture, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or any other obligor upon the Debt Securities of such series (and
collect in the manner provided by law out of the property of the Company or any
other obligor upon the Debt Securities of such series wherever situated the
moneys adjudged or decreed to be payable).


In case there shall be pending
proceedings for the bankruptcy or for the reorganization of the Company or any
other obligor upon the Debt Securities of any series under any Bankruptcy Law,
or in case a receiver, trustee or other similar official shall have been
appointed for a substantial part of its property, or in case of any other
similar judicial proceedings relative to the Company or any other obligor upon
the Debt Securities of any series, its creditors or a substantial part of its
property,


(a) the Trustee,
irrespective of whether the principal of Debt Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, (i) to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of
such series, (ii) to file such other papers or documents as may be
necessary or advisable and to take such other action (including without
limitation, sitting on a committee of creditors) in order to have the claims of
the Trustee (including any claim for reasonable compensation to the Trustee,
its agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence, bad faith or willful misconduct) and of the Holders thereof
allowed in any such judicial proceedings relative to the Company, or any other
obligor upon the Debt Securities of such series, its creditors or its property
and (iii) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of such Holders and of the Trustee on their behalf, and


(b) any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities Incurred, and all advances made, by the Trustee except
as a result of its negligence, bad faith or willful misconduct.


All rights of action and of
asserting claims under this Indenture, or under any of the Debt Securities, of
any series, may be enforced by the Trustee without the possession of any such
Debt Securities or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and any recovery of
judgment (except for any amounts payable to the Trustee pursuant to Section 7.06)
shall be for the ratable benefit of the Holders of all the Debt Securities in
respect of which such action was taken.


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



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SECTION 6.03. APPLICATION OF
MONEYS COLLECTED BY TRUSTEE. Any moneys or other property collected by the
Trustee pursuant to Section 6.02 with respect to Debt Securities of any
series shall be applied, after giving effect to the provisions of Article XII,
if applicable, in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys or other property, upon
presentation of the several Debt Securities of such series in respect of which
moneys or other property 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
money due the Trustee pursuant to Section 7.06 in connection with such
series of Debt Securities in respect of which moneys or other property is
collected;


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


THIRD: In case the principal of
the Outstanding Debt Securities in respect of which such moneys have been
collected shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Debt Securities of such series
for principal and premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the rate or
Yield to Maturity (in the case of Original Issue Discount Debt Securities)
borne by the Debt Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the Debt
Securities of such series, then to the payment of such principal and premium,
if any, and interest, without preference or priority of principal and premium,
if any, over interest, or of interest over principal and premium, if any, or of
any installment of interest over any other installment of interest, or of any
Debt Security of such series over any Debt Security of such series, ratably to
the aggregate of such principal and premium, if any, and interest; and


FOURTH: The remainder, if any,
shall be paid to the Company, its successors or assigns.


The Trustee may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.03.
At least 15 days before such record date, the Company shall mail to each Holder
and the Trustee a notice that states the record date, the payment date and
amount to be paid.


SECTION 6.04. LIMITATION ON
SUITS BY HOLDERS. No Holder of any Debt Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise,
upon or under or with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (a) such
Holder previously shall have given to the Trustee written notice of an Event of
Default with respect to Debt Securities of that same series and of the
continuance thereof, (b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series shall have
made written request upon the Trustee to institute such action or proceedings
in respect of such Event of Default in its own name as Trustee hereunder and
shall have offered to the Trustee such indemnity reasonably satisfactory to it
as it may require against the costs, expenses and liabilities to be Incurred
therein or thereby, (c) the Trustee, for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute any such
action or proceedings and (d) no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it
being understood and intended, and being expressly covenanted by the Holder of
every Debt Security with every other Holder and the Trustee, that no one or
more Holders shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or



 29
 






 



prejudice the rights of any Holders, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all such Holders. For the
protection and enforcement of the provisions of this Section 6.04, each
and every Holder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.


Notwithstanding any other
provision in this Indenture, however, the right of any Holder of any Debt
Security to receive payment of the principal of, and premium, if any, and
(subject to Section 2.12) interest on, such Debt Security on or after the
respective due dates expressed in such Debt Security, and to institute suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or effected without the consent of such Holder.


SECTION 6.05. REMEDIES
CUMULATIVE; DELAY OR OMISSION IN EXERCISE OF RIGHTS NOT A WAIVER OF DEFAULT.
Except as provided in Section 6.04, all powers and remedies given by this Article VI
to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and
remedy given by this Article VI or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Holders.


SECTION 6.06. RIGHTS OF
HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF DEBT SECURITIES TO DIRECT TRUSTEE
AND TO WAIVE DEFAULT. The Holders of a majority in aggregate principal amount
of the Debt Securities of any series at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Debt Securities of such series; PROVIDED,
HOWEVER, that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture, that such Holders shall have offered to
the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred thereby and that subject to the
provisions of Section 7.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel shall
determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a Responsible Officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly
prejudicial to Holders of Debt Securities of such series not taking part in
such direction; and PROVIDED FURTHER, HOWEVER, that nothing in this Indenture
contained shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction by such
Holders. Prior to the acceleration of the maturity of the Debt Securities of
any series, as provided in Section 6.01, the Holders of a majority in
aggregate principal amount of the Debt Securities of that series at the time
Outstanding may on behalf of the Holders of all the Debt Securities of that
series waive any past Default or Event of Default and its consequences for that
series, except (i) a Default in the payment of the principal of, and
premium, if any, or interest on, any of the Debt Securities and (ii) a
Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected thereby and (iii) a
Default in respect of a provision for the personal benefit or protection of the
Trustee (without its consent). In case of any such waiver, such Default shall
cease to exist, any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture, and the Company, the Trustee
and the Holders of the Debt Securities of that series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.


SECTION 6.07. TRUSTEE TO
GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY WITHHOLD SUCH NOTICE IN
CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days


 



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after the occurrence of a Default known to it with
respect to a series of Debt Securities give to the Holders thereof, in the
manner provided in Section 13.03, notice of all Defaults with respect to
such series known to the Trustee, unless such Defaults shall have been cured or
waived before the giving of such notice; PROVIDED that, except in the case of
Default in the payment of the principal of, or premium, if any, or interest on,
any of the Debt Securities of such series or in the making of any sinking fund
payment with respect to the Debt Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders thereof.


SECTION 6.08. REQUIREMENT OF
AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS UNDER THE INDENTURE OR AGAINST THE
TRUSTEE. All parties to this Indenture agree, and each Holder of any Debt
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 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 in the manner and
to the extent provided in the Trust Indenture Act, 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 6.08 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than ten percent in principal amount of the Outstanding
Debt Securities of that 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 Debt Security on or after the due date for such payment expressed in
such Debt Security.


ARTICLE VII


CONCERNING THE
TRUSTEE


SECTION 7.01. CERTAIN DUTIES
AND RESPONSIBILITIES. The Trustee, prior to the occurrence of an Event of
Default known to the Trustee and after the curing or waiving of all Events of
Default with respect to the Debt Securities of a series which may have occurred
with respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived) with respect to the
Debt Securities of a series and is known to the Trustee, the Trustee shall
exercise with respect to such series such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent Person would exercise or use under the circumstances in the conduct
of such Person’s own affairs.


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


(a) this subsection shall
not be construed to limit the effect of the first paragraph of this Section 7.01;


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


(1)             the
duties and obligations of the Trustee with respect to Debt Securities of any
series shall be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance of such duties
and obligations with respect to such series as



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are specifically set forth in this Indenture, and no
implied covenants or obligations with respect to such series shall be read into
this Indenture against the Trustee; and


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


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


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


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


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


SECTION 7.02. CERTAIN RIGHTS
OF TRUSTEE. Except as otherwise provided in Section 7.01:


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


(b) any request, direction, order or demand of
the Company mentioned herein shall be sufficiently evidenced by a Company Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;


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


(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders of Debt Securities of any
series pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which may be Incurred therein or
thereby;



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(e) subject to Section 7.01, the Trustee
shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;


(f) prior to the occurrence of an Event of
Default known to it and after the curing of all 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, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it will be entitled to examine the books, records, and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;


(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
bad faith, misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;


(h) if any property other then cash shall at any
time be subject to a Lien in favor of the Holders, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
Lien, may, but shall not be obligated to, make advances for the purpose of
preserving such property or of discharging tax Liens or other prior Liens or
encumbrances thereon;


(i) 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, conclusively rely upon an Officers’
Certificate;


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


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


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


(m) any permissive right or power granted to the
Trustee hereunder shall not be construed to be a duty;


(n) the Trustee shall not be charged with notice
or knowledge of any Default or Event of Default, other than an Event of Default
described in Section 6.01(a), (b) or (c), unless and except to the
extent such Default or Event of Default is actually known to a Responsible
Officer of the Trustee or written notice thereof is received by the Trustee at
its corporate trust office; and


(o) the Trustee shall be entitled to require that
any notice, request, direction or instruction provided to it pursuant to the
terms of this Indenture shall be made or confirmed to it in writing.



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SECTION 7.03. TRUSTEE NOT
LIABLE FOR RECITALS IN INDENTURE OR IN DEBT SECURITIES. The recitals contained
herein and in the Debt Securities (except the Trustee’s certificate of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debt Securities of any series, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the Debt
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. The Trustee shall not be
accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.


SECTION 7.04. TRUSTEE,
PAYING AGENT OR REGISTRAR MAY OWN DEBT SECURITIES. The Trustee or any
paying agent or Registrar, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities and subject to the provisions of the
Trust Indenture Act relating to conflicts of interest and preferential claims
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, paying agent or Registrar.


SECTION 7.05. MONEYS
RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by
it hereunder. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time to the Company upon a Company Order.


SECTION 7.06. COMPENSATION
AND REIMBURSEMENT. The Company covenants and agrees to pay in Dollars to the
Trustee from time to time, such compensation as the parties shall agree in
writing from time to time for all services rendered by it hereunder (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and, except as otherwise expressly provided
herein, the Company will pay or reimburse in Dollars the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents, attorneys and counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advances as may arise from the
Trustee’s negligence, bad faith or willful misconduct The Company also
covenants to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability or expense, including taxes (other than taxes
based upon the Trustee’s income), Incurred without negligence, bad faith or
willful misconduct on the part of the Trustee, arising out of or in connection
with the acceptance or administration of this trust or trusts hereunder or the
exercise or performance of its powers or duties hereunder, including the
reasonable costs and expenses of defending itself against any claim (whether
asserted by any Holder or any other Person other than the Company) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company may elect to defend such claim and, in such
case, the Trustee may have separate counsel. The obligations of the Company
under this Section 7.06 to compensate and indemnify the Trustee and to
hold it harmless and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Company
and the Holders agree that such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities upon all property and funds held or
collected by the Trustee, as such, except funds held in trust for the payment
of principal of, and premium, if any, or interest on, particular Debt
Securities.


When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.01(f) or
(g) occurs, the expenses and the compensation for the services are
intended to 



 34
 






 



constitute expenses of administration under any
bankruptcy, insolvency, reorganization or other similar law.


SECTION 7.07. RIGHT OF
TRUSTEE TO RELY ON AN OFFICERS’ CERTIFICATE WHERE NO OTHER EVIDENCE
SPECIFICALLY PRESCRIBED. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof.


SECTION 7.08. SEPARATE
TRUSTEE; REPLACEMENT OF TRUSTEE. The Company may, but need not, appoint a
separate Trustee for any one or more series of Debt Securities. The Trustee may
resign with respect to one or more or all series of Debt Securities at any time
by giving notice to the Company. The Holders of a majority in principal amount
of the Debt Securities of a particular series may remove the Trustee for such
series and only such series by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:


(1)            the
Trustee fails to comply with Section 7.10;


(2)            the
Trustee is adjudged bankrupt or insolvent;


(3)            a
receiver or other public officer takes charge of the Trustee or its property;
or


(4)            the
Trustee otherwise becomes incapable of acting.


If the Trustee resigns, is
removed by the Company or by the Holders of a majority in principal amount of
the Debt Securities of a particular series and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
No resignation or removal of the Trustee and no appointment of a successor
Trustee shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of this Section 7.08.


A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders of Debt Securities of each
applicable series. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the Lien provided
for in Section 7.06.


If a successor Trustee does not
take office within 60 days after the retiring Trustee gives notice of
resignation or is removed, the retiring Trustee (at the Company’s expense) or
the Holders of 25% in principal amount of the Debt Securities of any applicable
series may petition any court of competent jurisdiction for the appointment of
a successor Trustee for the Debt Securities of such series.


If the Trustee fails to comply
with Section 7.10, any Holder of Debt Securities of any applicable series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for the Debt Securities of such
series.


Notwithstanding the replacement
of the Trustee pursuant to this Section 7.08, the Company’s obligations
under Section 7.06 shall continue for the benefit of the retiring Trustee.



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In the case of the appointment
hereunder of a separate or successor trustee with respect to the Debt
Securities of one or more series, the Company, any retiring Trustee and each
successor or separate Trustee with respect to the Debt Securities of any
applicable series shall execute and deliver an indenture supplemental hereto (1) which
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of any retiring Trustee
with respect to the Debt Securities of any series as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee
and (2) that shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such separate, retiring or
successor 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.


SECTION 7.09. SUCCESSOR
TRUSTEE BY MERGER. If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust business or assets
to, another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall be the
successor Trustee, provided that such successor shall be eligible and qualified
in accordance with Section 7.10.


In case at the time such
successor or successors by merger, conversion or consolidation to the Trustee
shall succeed to the trusts created by this Indenture any of the Debt
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Debt Securities so authenticated; and in case at that
time any of the Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Debt Securities or in this Indenture provided that
the certificate of the Trustee shall have.


SECTION 7.10. ELIGIBILITY;
DISQUALIFICATION. The Trustee shall at all times satisfy the requirements of Section 310(a) of
the Trust Indenture Act. The Trustee shall have a combined capital and surplus
of at least $50,000,000, as set forth in its most recent published annual
report of condition. No obligor upon the Debt Securities of a particular series
or Person directly or indirectly controlling, controlled by or under common
control with such obligor shall serve as Trustee upon the Debt Securities of
such series. The Trustee shall comply with Section 310(b) of the
Trust Indenture Act; PROVIDED, HOWEVER, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act this
Indenture or any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of
the Trust Indenture Act are met.


SECTION 7.11. 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 had resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.


SECTION 7.12. 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 Debt Securities,
whether acting as Trustee, Security Registrar, paying agent or otherwise with
respect to the Debt Securities.



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ARTICLE VIII


CONCERNING THE
HOLDERS


SECTION 8.01. EVIDENCE OF
ACTION BY HOLDERS. Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of the Debt Securities
of any or all series may take action (including the making of any demand or
request, the giving of any direction, notice, consent or waiver or the taking
of any other action) the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, (b) by the
record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Section 5.02 or (c) by
a combination of such instrument or instruments and any such record of such a
meeting of Holders.


SECTION 8.02. PROOF OF
EXECUTION OF INSTRUMENTS AND OF HOLDING OF DEBT SECURITIES. Subject to the
provisions of Sections 7.01, 7.02 and 13.09, proof of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee.


The ownership of Registered
Securities of any series shall be proved by the Debt Security Register or by a
certificate of the Registrar for such series.


SECTION 8.03. WHO MAY BE
DEEMED OWNER OF DEBT SECURITIES. Prior to due presentment for registration of
transfer of any Registered Security, the Company, the Trustee, any paying agent
and any Registrar may deem and treat the Person in whose name any Registered
Security shall be registered upon the books of the Company as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and premium, if any, and (subject to Section 2.03) interest on such
Registered Security and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Registrar shall be affected by any notice
to the contrary; and all such payments so made to any such Holder for the time
being, or upon his order, shall be valid and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Registered Security.


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


SECTION 8.04. INSTRUMENTS
EXECUTED BY HOLDERS BIND FUTURE HOLDERS. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 8.01, of the taking
of any action by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in this Indenture in connection
with such action and subject to the following paragraph, any Holder of a Debt
Security which is shown by the evidence to be included in the Debt Securities
the Holders of which have consented to such action may, by filing written
notice with the Trustee at its corporate trust office and upon proof of holding
as provided in Section 8.02, revoke such action so far as concerns such
Debt Security. Except as aforesaid any such action taken by the Holder of any
Debt Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Debt Security and of any Debt Security issued
upon transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security
or such other Debt Securities. Any action taken by the Holders 



 37
 






 



of the percentage in aggregate principal amount of the
Debt Securities of any series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Debt Securities of such series.


The Company may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders of
Registered Securities entitled to give their consent or take any other action
required or permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding the immediately preceding paragraph, those
Persons who were Holders of Registered Securities at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders of Registered
Securities after such record date. No such consent shall be valid or effective
for more than 120 days after such record date unless the consent of the Holders
of the percentage in aggregate principal amount of the Debt Securities of such
series specified in this Indenture shall have been received within such 120-day
period.


ARTICLE IX


SUPPLEMENTAL
INDENTURES


SECTION 9.01. PURPOSES FOR
WHICH SUPPLEMENTAL INDENTURE MAY BE ENTERED INTO WITHOUT CONSENT OF
HOLDERS. The Company, when authorized by a resolution of the Board of
Directors, and the Trustee may from time to time and at any time, without the
consent of Holders, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as in force
at the date of the execution thereof) for one or more of the following
purposes:


(a) to evidence the succession pursuant to Article X
of another Person to the Company, or successive successions, and the assumption
by the Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the Debt
Securities;


(b) to surrender any right or power herein
conferred upon the Company, to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of the
Holders of all or any series of Debt Securities (and if such covenants are to
be for the benefit of less than all series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) as the Board of Directors shall consider to be for the protection of
the Holders of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a Default in any of such additional covenants,
restrictions, conditions or provisions a Default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture; PROVIDED, HOWEVER, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after Default (which period may be
shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the
remedies available to the Trustee upon such Default or may limit the right of
the Holders of a majority in aggregate principal amount of any or all series of
Debt Securities to waive such default;


(c) to cure any ambiguity or to correct or
supplement any provision contained herein, in any supplemental indenture or in
any Debt Securities of any series that may be defective or inconsistent with
any other provision contained herein, in any supplemental indenture or in the
Debt Securities of such series; to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under this Indenture provided that, in each
case, such provisions shall not adversely affect the interests of any Holders
of Debt Securities of any series in any material respect;



 38
 






 



 


(d) to modify or amend this Indenture in such a
manner as to permit the qualification of this Indenture or any indenture
supplemental hereto under the Trust Indenture Act as then in effect, except
that nothing herein contained shall permit or authorize the inclusion in any
indenture supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;


(e) to add to or change any of the provisions of
this Indenture to change or eliminate any restrictions on the payment of
principal of, or premium, if any, or interest on, Registered Securities;
PROVIDED, that any such action shall not adversely affect the interests of the
Holders of Debt Securities of any series in any material respect or permit or
facilitate the issuance of Debt Securities of any series in uncertificated
form;


(f) to comply with Article X;


(g) in the case of any Debt Securities, if any,
subordinated pursuant to Article XII, to make any change in Article XII
that would limit or terminate the benefits applicable to any holder of Senior
Indebtedness (or Representatives therefor) under Article XII;


(h) to add Guarantees with respect to the Debt
Securities or to secure the Debt Securities;


(i) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of Debt
Securities; PROVIDED, HOWEVER, that any such addition, change or elimination
not otherwise permitted under this Section 9.01 shall (i) neither (A) apply
to any Debt Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (B) modify
the rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security outstanding;


(j) to evidence and provide for the acceptance of
appointment hereunder by a successor or separate Trustee with respect to the
Debt 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;


(k) to establish the form or terms of Debt
Securities of any series as permitted by Sections 2.01 and 2.03; and


(l) to make any change not otherwise prohibited
under the Trust Indenture Act that does not adversely affect the rights of any
Holder of Debt Securities of any series in any material respect.


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


Any supplemental indenture
authorized by the provisions of this Section 9.01 may be executed by the
Company and the Trustee without the consent of the Holders of any of the Debt
Securities at the time outstanding, notwithstanding any of the provisions of Section 9.02.


In the case of any Debt
Securities subordinated pursuant to Article XII, an amendment under this Section 9.01
may not make any change that adversely affects the rights under Article XII
of any holder of such Senior Indebtedness then Outstanding unless the holders
of such Senior Indebtedness (or any group or Representative thereof authorized
to give a consent) consent to such change.


After an amendment under this Section 9.01
becomes effective, the Company shall mail to Holders of Debt Securities of each
series affected thereby a notice briefly describing such amendment. The failure
to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.



 39
 






 



 


SECTION 9.02. MODIFICATION
OF INDENTURE WITH CONSENT OF HOLDERS OF DEBT SECURITIES. Without notice to any
Holder but with the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in aggregate principal amount of the
outstanding Debt Securities of each series affected by such supplemental
indenture, the Company, when authorized by a resolution of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of execution
thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the Debt Securities
of such series; PROVIDED, that no such supplemental indenture, without the
consent of the Holders of each Debt Security so affected, shall (i) reduce
the percentage in principal amount of Debt Securities of any series whose
Holders must consent to an amendment; (ii) reduce the rate of or extend
the time for payment of interest on any Debt Security; (iii) reduce the
principal of or extend the Stated Maturity of any Debt Security; (iv) reduce
the premium payable upon the redemption of any Debt Security or change the time
at which any Debt Security may or shall be redeemed in accordance with Article III;
(v) make any Debt Security payable in Currency other than that stated in
the Debt Security; (vi) in the case of any Debt Security subordinated
pursuant to Article XII, make any change in Article XII that
adversely affects the rights of any Holder under Article XII; (vii) release
any security that may have been granted in respect of the Debt Securities; or (viii) make
any change in Section 6.06 or this Section 9.02.


A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which
has been expressly included solely for the benefit of one or more particular
series of Debt Securities or which modifies the rights of the Holders of Debt
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
Debt Securities of any other series.


Upon the request of the Company,
accompanied by a copy of a resolution of the Board of Directors authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties,
obligations, privileges or immunities under this Indenture or otherwise, in
which case the Trustee may, but shall not be obligated to, enter into such
supplemental indenture.


It shall not be necessary for the
consent of the Holders under this Section 9.02 to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.


In the case of any Debt
Securities subordinated pursuant to Article XII, an amendment under this Section 9.02
may not make any change that adversely affects the rights under Article XII
of any holder of such Senior Indebtedness then Outstanding unless the holders
of such Senior Indebtedness (or any group or Representative thereof authorized
to give a consent) consent to such change.


After an amendment under this Section 9.02
becomes effective, the Company shall mail to Holders of Debt Securities of each
series affected thereby a notice briefly describing such amendment. The failure
to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.



 40















 


SECTION 9.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.


 


The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
require, and shall be entitled to receive and rely upon, an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such
supplemental indenture complies with the provisions of this Article IX.


 


SECTION 9.04. DEBT SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Debt Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article IX 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. New Debt Securities of any series so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of such series then outstanding.
Failure to make the appropriate notation or to issue a new Debt Security of
such series shall not affect the validity of such amendment.


 


SECTION 9.05. PAYMENT FOR CONSENT. Neither the Company nor any Affiliate
of the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Debt Securities unless such consideration
is offered to be paid to all Holders that so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.


 


ARTICLE X


 


CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


SECTION 10.01. CONSOLIDATIONS AND MERGERS OF THE COMPANY. The Company
shall not, in a single transaction or through a series of related transactions,
consolidate with or merge with or into any Person or group of Persons, in a
transaction in which it is not the surviving Corporation, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all its
assets to any successor Person, or permit any of its Subsidiaries to enter into
any such transaction or series of transactions, if such transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the assets of the Company and its
Subsidiaries on a consolidated basis to any other Person or group of Persons
unless: (i) the resulting, surviving or transferee Person if other than the
Company (the “Successor Company”) shall be a corporation organized and existing
under the laws of the United States, any State thereof or the District of
Columbia and the Successor Company shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Debt
Securities according to their tenor, and this Indenture; (ii) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any Subsidiary of the Company
as a result of such transaction as having been Incurred by the Successor
Company or such Subsidiary at the time of such transaction), no Default or
Event of Default would occur or be continuing; and (iii) the Company shall
have delivered



 41
 








to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.


SECTION 10.02. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of
any consolidation or merger, or conveyance or transfer of the assets of the
Company as an entirety or virtually as an entirety in accordance with
Section 10.01, the Successor Company shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor corporation shall be relieved of
any further obligation under the Indenture and the Debt Securities. The
Successor Company thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all the Debt Securities issuable
hereunder which theretofore shall not have been signed by the Company and delivered
to the Trustee; and, upon the order of the Successor Company, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Debt
Securities which the Successor Company thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Debt Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Debt Securities theretofore or thereafter issued in accordance with the
terms of this Indenture as though all such Debt Securities had been issued at
the date of the execution hereof.


 


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


 


ARTICLE XI


 


SATISFACTION AND DISCHARGE OF INDENTURE;


DEFEASANCE; UNCLAIMED MONEYS


 


SECTION 11.01. APPLICABILITY OF ARTICLE. If, pursuant to
Section 2.03, provision is made for the defeasance of Debt Securities of a
series, then the provisions of this Article XI relating to defeasance of
Debt Securities shall be applicable except as otherwise specified pursuant to
Section 2.03 for Debt Securities of such series.


 


SECTION 11.02. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE. (a)
If at any time (i) the Company shall have delivered to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.09 and (2) Debt Securities for whose payment
money has theretofore been deposited in trust and thereafter repaid to the
Company as provided in Section 11.05) or (ii) all Debt Securities of
such series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee as trust funds the
entire amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 2.03) sufficient to pay
at maturity or upon redemption all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due on such date of maturity or
redemption date, as the case may be, and if in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive payments of
principal of, and premium, if any, and interest on, such Debt Securities and
the Company’s right of optional redemption, if any) with respect to the Debt
Securities of such series, and the Trustee,



 42
 








on demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.


(b) In addition to the rights of the Company pursuant to Section
11.02(a), but subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series (“legal defeasance option”)
or (ii) its obligations with respect to the Debt Securities of such series
under clause (ii) of Section 10.01 and the related operation of
Section 6.01(d) and the operation of Sections 6.01(e) (“covenant
defeasance option”). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.


 


If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities of the defeased series may not be accelerated
because of an Event of Default specified in Sections 6.01(d) and
(e) (except to the extent covenants or agreements referenced in such
Sections remain applicable).


 


Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.


 


(c) Notwithstanding clauses (a) and (b) above, the
Company’s obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.08,
11.06 and 11.07 shall survive until the Debt Securities of the defeased series
have been paid in full. Thereafter, the Company’s obligations in Sections 7.06,
11.06 and 11.07 shall survive.


 


SECTION 11.03. CONDITIONS OF DEFEASANCE. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:


 


(1)            the
Company irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations for the payment of principal of, and premium, if any, and interest
on, the Debt Securities of such series to maturity or redemption, as the case
may be;


(2)            the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants that in their belief the payments of principal and
interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay the principal,
premium and interest when due on all the Debt Securities of such series to
maturity or redemption, as the case may be;


(3)            123
days pass after the deposit is made and during the 123-day period no
Default specified in Section 6.01(f) or (g) with respect to the
Company occurs which is continuing at the end of the period;


(4)            the
deposit does not constitute a default under any other agreement binding on the
Company and, if the Debt Securities of such series are subordinated pursuant to
Article XII, is not prohibited by Article XII;


(5)            the
Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of 1940;


(6)            in
the event of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue



 43
 








Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case of
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of Debt 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;


 


(7)            in
the event of the covenant defeasance option, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of Debt
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;
and


(8)            the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and discharge of
the Debt Securities of such series as contemplated by this Article XI have
been complied with.


Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such
series at a future date in accordance with Article III.


 


SECTION 11.04. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities of the defeased series. In the event the Debt Securities of
the defeased series are subordinated pursuant to Article XII, money and
securities so held in trust are not subject to Article XII.


 


SECTION 11.05. REPAYMENT TO COMPANY. The Trustee and any paying agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.


 


Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors.


 


SECTION 11.06. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company
shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.


 


SECTION 11.07. REINSTATEMENT. If the Trustee or any paying agent is
unable to apply any money or U.S. Government Obligations in accordance with
this Article XI by reason of any legal proceeding or by reason of any
order or judgment of any court or government authority, in either case
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Debt Securities of the defeased series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article XI until such time as the Trustee or any paying agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article XI.



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ARTICLE XII


 


SUBORDINATION OF DEBT SECURITIES


 


SECTION 12.01. APPLICABILITY OF ARTICLE; AGREEMENT TO SUBORDINATE. The
provisions of this Article XII shall be applicable to the Debt Securities
of any series (Debt Securities of such series referred to in this
Article XII as “Subordinated Debt Securities”) designated, pursuant to
Section 2.03, as subordinated to Senior Indebtedness. Each Holder by
accepting a Subordinated Debt Security agrees that the Indebtedness evidenced
by such Subordinated Debt Security is subordinated in right of payment, to the
extent and in the manner provided in this Article XII, to the prior
payment of all Senior Indebtedness and that the subordination is for the
benefit of and enforceable by the holders of Senior Indebtedness. All
provisions of this Article XII shall be subject to Section 12.12.


 


SECTION 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment or
distribution of the assets of the Company to creditors upon a total or partial
liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or a substantial part of its property:


 


(1)            holders
of Senior Indebtedness shall be entitled to receive payment in full in cash of
the Senior Indebtedness (including interest (if any), accruing on or after the
commencement of a proceeding in bankruptcy, whether or not allowed as a claim
against the Company in such bankruptcy proceeding) before Holders of
Subordinated Debt Securities shall be entitled to receive any payment of
principal of, or premium, if any, or interest on, the Subordinated Debt
Securities; and


(2)            until
the Senior Indebtedness is paid in full, any distribution to which Holders of
Subordinated Debt Securities would be entitled but for this Article XII
shall be made to holders of Senior Indebtedness as their interests may appear,
except that such Holders may receive shares of stock of the Company and any
debt securities that are subordinated to Senior Indebtedness to at least the
same extent as the Subordinated Debt Securities.


SECTION 12.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not pay
the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not
repurchase, redeem or otherwise retire (except, in the case of Subordinated
Debt Securities that provide for a mandatory sinking fund pursuant to
Section 3.04, by the delivery of Subordinated Debt Securities by the
Company to the Trustee pursuant to the first paragraph of Section 3.05)
any Debt Securities (collectively, “pay the Subordinated Debt Securities”) if
(i) any principal, premium or interest in respect of Senior Indebtedness
is not paid within any applicable grace period (including at maturity) or
(ii) any other default on Senior Indebtedness occurs and the maturity of
such Senior Indebtedness is accelerated in accordance with its terms unless, in
either case, (x) the default has been cured or waived and any such acceleration
has been rescinded or (y) such Senior Indebtedness has been paid in full in
cash; PROVIDED, HOWEVER, that the Company may pay the Subordinated Debt
Securities without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of each
issue of Designated Senior Indebtedness. During the continuance of any default
(other than a default described in clause (i) or (ii) of the preceding
sentence) with respect to any Designated Senior Indebtedness pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (a “Payment Blockage Period”)
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a “Blockage Notice”)
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and the Company from



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the Person or Persons who gave such Blockage Notice,
(ii) by repayment in full in cash of such Designated Senior Indebtedness
or (iii) because the default giving rise to such Blockage Notice is no longer
continuing). Subject to the provisions contained in the first sentence of this
Section 12.03, unless the holders of such Designated Senior Indebtedness
or the Representative of such holders shall have accelerated the maturity of
such Designated Senior Indebtedness, the Company may resume payments on the
Subordinated Debt Securities after such Payment Blockage Period. Not more than
one Blockage Notice may be given in any consecutive 360-day period, irrespective
of the number of defaults with respect to any number of issues of Senior
Indebtedness during such period. For purposes of this Section 12.03, no
default or event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period shall be, or be
made, the basis of the commencement of a subsequent Payment Blockage Period by
the Representative of such Designated Senior Indebtedness, whether or not
within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.


SECTION 12.04. ACCELERATION OF PAYMENT OF DEBT SECURITIES. If payment of
the Subordinated Debt Securities is accelerated because of an Event of Default,
the Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.


 


SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution is
made to Holders of Subordinated Debt Securities that because of this
Article XII should not have been made to them, the Holders who receive
such distribution shall hold it in trust for holders of Senior Indebtedness and
pay it over to them as their interests may appear.


 


SECTION 12.06. SUBROGATION. After all Senior Indebtedness is paid in
full and until the Subordinated Debt Securities are paid in full, Holders
thereof shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article XII to holders of Senior Indebtedness which otherwise
would have been made to Holders of Subordinated Debt Securities is not, as
between the Company and such Holders, a payment by the Company on Senior
Indebtedness.


 


SECTION 12.07. RELATIVE RIGHTS. This Article XII defines the
relative rights of Holders of Subordinated Debt Securities and holders of
Senior Indebtedness. Nothing in this Indenture shall:


 


(1)            impair,
as between the Company and Holders of either Subordinated Debt Securities or
Debt Securities, the obligation of the Company, which is absolute and
unconditional, to pay principal of, and premium, if any, and interest on, the
Subordinated Debt Securities and the Debt Securities in accordance with their
terms; or


(2)            prevent
the Trustee or any Holder of either Subordinated Debt Securities or Debt
Securities from exercising its available remedies upon a Default, subject to
the rights of holders of Senior Indebtedness to receive distributions otherwise
payable to Holders of Subordinated Debt Securities.


SECTION 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right of
any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.


 


SECTION 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 12.03, the Trustee or any paying agent may continue to make
payments on Subordinated Debt Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two business days prior to the date of such
payment, a Responsible Officer of the Trustee receives written notice
satisfactory to it that payments may not be made under



 46
 








this Article XII. The Company, the Registrar, any
paying agent, a Representative or a holder of Senior Indebtedness may give the
notice; PROVIDED, HOWEVER, that, if an issue of Senior Indebtedness has a
Representative, only the Representative may give the notice.


The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness; and nothing in
Article VII shall deprive the Trustee of any of its rights as such holder.


 


Nothing in this Article XII shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.06.


 


SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).


 


SECTION 12.11. ARTICLE XII NOT TO PREVENT DEFAULTS OR LIMIT RIGHT TO
ACCELERATE. The failure to make a payment pursuant to the Debt Securities by
reason of any provision in this Article XII shall not be construed as
preventing the occurrence of a Default. Nothing in this Article XII shall
have any effect on the right of the Holders or the Trustee to accelerate the
maturity of either the Subordinated Debt Securities or the Debt Securities, as
the case may be.


 


SECTION 12.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated
to the prior payment of any Senior Indebtedness or subject to the restrictions
set forth in this Article XII, and none of the Holders thereof shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.


 


SECTION 12.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Holders shall
be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (ii) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to such Holders or (iii) upon the Representatives for the
holders of Senior Indebtedness for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XII. In the event that the
Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article XII, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this Article XII,
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. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article XII.


 


SECTION 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
accepting a Subordinated Debt Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders of



 47
 








Subordinated Debt Securities and the holders of Senior
Indebtedness as provided in this Article XII and appoints the Trustee as
attorney-in-fact for any and all such purposes.


SECTION 12.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Holders of Subordinated Debt Securities or
the Company or any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article XII or otherwise.


 


SECTION 12.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Holder by accepting a Subordinated Debt Security
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Subordinated Debt Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.


 


ARTICLE XIII


 


MISCELLANEOUS PROVISIONS


 


SECTION 13.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE. All
the covenant’s stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.


 


SECTION 13.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR COMPANY
VALID. Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Successor Company.


 


SECTION 13.03. REQUIRED NOTICES OR DEMANDS. Except as otherwise
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
facsimile, or by overnight courier or by being deposited postage prepaid in a
post office letter box in the United States, in each case addressed (until
another address is filed by the Company with the Trustee) as follows:


 


Acusphere, Inc.


500 Arsenal Street


Watertown, MA 02472


Telephone: (617) 648-8800


Facsimile: (617) 926-4750


Attention: Chief Financial Officer


 


With a copy to:


Goodwin Procter LLP


53 State Street


Boston, Massachusetts 02109


Attention: Lawrence S. Wittenberg, Esq.


Facsimile: (617) 523-1231


 


Except as otherwise expressly provided in this Indenture, any notice,
direction, request or demand by the Company or by any Holder to or upon the
Trustee may be given or made, for all purposes, by



 48
 








facsimile, or by overnight courier or by being mailed,
postage prepaid, in the United States, in each case addressed to:


The Bank of New York

Corporate Trust Administration

c/o The Bank of New York Trust Company, N.A.

222 Berkeley Street, 2nd Floor

Boston, Massachusetts 02116

Attention:  Peter M. Murphy

Facsimile:  (617) 850-6422


 


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


 


Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such Holder at the address of such Holder
as shown on the Debt Security Register. Any report pursuant to Section 313
of the Trust Indenture Act shall be transmitted in compliance with subsection
(c) therein.


 


In the event of suspension of publication of any Authorized Newspaper or
by reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.


 


Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given (provided, however, that in no event shall any
notice, direction, request or demand to the Trustee be deemed to have been
given to or received by the Trustee unless and until actually received by the
Trustee at the address provided for in this Section 13.03).


 


SECTION 13.04. INDENTURE AND DEBT SECURITIES TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture and each Debt
Security shall be deemed to be New York contracts, and for all purposes shall
be construed in accordance with the laws of said State.


 


SECTION 13.05. OFFICERS’ CERTIFICATE AND OPINION OF COUNSEL TO BE
FURNISHED UPON APPLICATION OR DEMAND BY THE COMPANY. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.


 


Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (1) a statement that the Person making
such certificate or opinion has read such covenant or condition, (2) 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, (3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.



 49
 








 


SECTION 13.06. PAYMENTS DUE ON LEGAL HOLIDAYS. In any case where the
date of maturity of interest on or principal of and premium, if any, on the
Debt Securities of a series or the date fixed for redemption or repayment of
any Debt Security or the making of any sinking fund payment shall not be a
business day at any Place of Payment for the Debt Securities of such series,
then payment of interest or principal and premium, if any, or the making of
such sinking fund payment need not be made on such date at such Place of
Payment, but may be made on the next succeeding business day at such Place of
Payment with the same force and effect as if made on the date of maturity or
the date fixed for redemption, and no interest shall accrue for the period
after such date. If a record date is not a business day, the record date shall
not be affected.


 


SECTION 13.07. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required
to be included in this Indenture by any of Sections 310 to 318, inclusive, of
the Trust Indenture Act, such required provision shall control.


 


SECTION 13.08. COMPUTATION OF INTEREST ON DEBT SECURITIES. Interest, if
any, on the Debt Securities shall be computed on the basis of a 360-day
year of twelve 30-day months, except as may otherwise be provided
pursuant to Section 2.03.


 


SECTION 13.09. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The Trustee
may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their
functions.


 


SECTION 13.10. NO RECOURSE AGAINST OTHERS. An incorporator or any past,
present or future director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Debt Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Debt
Security, each Holder shall waive and release all such liability. The waiver
and release shall be part of the consideration for the issue of the Debt
Securities.


 


SECTION 13.11. SEVERABILITY. In case any provision in this Indenture,
the Debt 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 13.12. EFFECT OF HEADINGS. The article and section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.


 


SECTION 13.13. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.


 


The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions herein set forth.



 50
 








 


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


 


	
  

  	
  ACUSPHERE, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



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