Exhibit
4.1


 


 


THE PEP
BOYS—MANNY, MOE & JACK, Issuer


 


To 





WACHOVIA BANK, NATIONAL ASSOCIATION, Trustee 





INDENTURE 





Dated as of December 14, 2004



Subordinated Debt Securities


 


 





















 


Reconciliation
and tie between

Trust Indenture Act of 1939 (the “Trust Indenture Act”) and

Indenture


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  	
   

  
	
  ss.

  	
  310(a)(1)

  	
   

  	
  6.8

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  6.8

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.8

  	
   

  
	
  ss.

  	
  312(a)

  	
   

  	
  7.1

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.2

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.2

  	
   

  
	
  ss.

  	
  313(a)

  	
   

  	
  7.3

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.3

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.3

  	
   

  
	
  ss.

  	
  314(a)

  	
   

  	
  7.4

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
  1.2, 3.3

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
  1.2, 3.3

  	
   

  
	
   

  	
  (e)

  	
   

  	
  1.2, 3.3

  	
   

  
	
   

  	
  (f)

  	
   

  	
  1.2, 3.3

  	
   

  
	
  ss.

  	
  316(a)(1)(A)

  	
   

  	
  5.12

  	
   

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  	
   

  
	
   

  	
  (b)

  	
   

  	
  5.8

  	
   

  
	
  ss.

  	
  317(a)(1)

  	
   

  	
  5.3

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  5.4

  	
   

  
	
   

  	
  (b)

  	
   

  	
  10.3

  	
   

  
	
  ss.

  	
  318(a)

  	
   

  	
  1.8

  	
   

  



 


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


 


i





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I.

  	
   

  
	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  Definitions.

  	
   

  
	
  Section 1.2.

  	
  Compliance
  Certificates and Opinions.

  	
   

  
	
  Section 1.3.

  	
  Form
  of Documents Delivered to Trustee.

  	
   

  
	
  Section 1.4.

  	
  Acts of Holders.

  	
   

  
	
  Section 1.5.

  	
  Notices,
  etc. to Trustee and Company.

  	
   

  
	
  Section 1.6.

  	
  Notice
  to Holders of Securities; Waiver.

  	
   

  
	
  Section 1.7.

  	
  Language of
  Notices.

  	
   

  
	
  Section 1.8.

  	
  Conflict
  with Trust Indenture Act.

  	
   

  
	
  Section 1.9.

  	
  Effect
  of Headings and Table of Contents.

  	
   

  
	
  Section 1.10.

  	
  Successors
  and Assigns.

  	
   

  
	
  Section 1.11.

  	
  Separability
  Clause.

  	
   

  
	
  Section 1.12.

  	
  Benefits of
  Indenture.

  	
   

  
	
  Section 1.13.

  	
  Governing Law.

  	
   

  
	
  Section 1.14.

  	
  Legal Holidays.

  	
   

  
	
  Section 1.15.

  	
  Counterparts.

  	
   

  
	
  Section 1.16.

  	
  Judgment
  Currency.

  	
   

  
	
  Section 1.17.

  	
  No
  Security Interest Created.

  	
   

  
	
  Section 1.18.

  	
  Limitation
  on Individual Liability.

  	
   

  
	
  Section 1.19.

  	
  Submission
  to Jurisdiction.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  
	
  SECURITIES FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Forms Generally.

  	
   

  
	
  Section 2.2.

  	
  Form
  of Trustee’s Certificate of Authentication.

  	
   

  
	
  Section 2.3.

  	
  Securities
  in Global Form.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
   

  
	
  THE
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Amount
  Unlimited; Issuable in Series.

  	
   

  
	
  Section 3.2.

  	
  Currency;
  Denominations.

  	
   

  
	
  Section 3.3.

  	
  Execution, Authentication, Delivery
  and Dating.

  	
   

  
	
  Section 3.4.

  	
  Temporary
  Securities.

  	
   

  
	
  Section 3.5.

  	
  Registration, Transfer and Exchange.

  	
   

  
	
  Section 3.6.

  	
  Mutilated, Destroyed, Lost and Stolen
  Securities.

  	
   

  
	
  Section 3.7.

  	
  Payment
  of Interest and Certain Additional Amounts; Rights to Interest and Certain
  Additional Amounts Preserved.

  	
   

  
	
  Section 3.8.

  	
  Persons Deemed
  Owners.

  	
   

  
	
  Section 3.9.

  	
  Cancellation.

  	
   

  
	
  Section 3.10.

  	
  Computation
  of Interest.

  	
   

  



 


ii





















 


	
  ARTICLE IV.

  	
   

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Satisfaction
  and Discharge.

  	
   

  
	
  Section 4.2.

  	
  Defeasance
  and Covenant Defeasance.

  	
   

  
	
  Section 4.3.

  	
  Application
  of Trust Money.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  Events of Default.

  	
   

  
	
  Section 5.2.

  	
  Acceleration
  of Maturity; Rescission and Annulment.

  	
   

  
	
  Section 5.3.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee.

  	
   

  
	
  Section 5.4.

  	
  Trustee
  May File Proofs of Claim.

  	
   

  
	
  Section 5.5.

  	
  Trustee
  May Enforce Claims without Possession of Securities or Coupons.

  	
   

  
	
  Section 5.6.

  	
  Application
  of Money Collected.

  	
   

  
	
  Section 5.7.

  	
  Limitations on
  Suits.

  	
   

  
	
  Section 5.8.

  	
  Unconditional
  Right of Holders to Receive Principal and any Premium, Interest and
  Additional Amounts.

  	
   

  
	
  Section 5.9.

  	
  Restoration
  of Rights and Remedies.

  	
   

  
	
  Section 5.10.

  	
  Rights
  and Remedies Cumulative.

  	
   

  
	
  Section 5.11.

  	
  Delay
  or Omission Not Waiver.

  	
   

  
	
  Section 5.12.

  	
  Control
  by Holders of Securities.

  	
   

  
	
  Section 5.13.

  	
  Waiver of
  Past Defaults.

  	
   

  
	
  Section 5.14.

  	
  Waiver of Usury, Stay or Extension
  Laws.

  	
   

  
	
  Section 5.15.

  	
  Undertaking
  for Costs.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  
	
  THE
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  Certain
  Duties and Responsibilities.

  	
   

  
	
  Section 6.2.

  	
  Certain
  Rights of Trustee.

  	
   

  
	
  Section 6.3.

  	
  Notice of
  Defaults.

  	
   

  
	
  Section 6.4.

  	
  Not
  Responsible for Recitals or Issuance of Securities.

  	
   

  
	
  Section 6.5.

  	
  May Hold
  Securities.

  	
   

  
	
  Section 6.6.

  	
  Money Held in
  Trust.

  	
   

  
	
  Section 6.7.

  	
  Compensation
  and Reimbursement.

  	
   

  
	
  Section 6.8.

  	
  Corporate
  Trustee Required; Eligibility.

  	
   

  
	
  Section 6.9.

  	
  Resignation
  and Removal; Appointment of Successor.

  	
   

  
	
  Section 6.10.

  	
  Acceptance
  of Appointment by Successor.

  	
   

  
	
  Section 6.11.

  	
  Merger, Conversion, Consolidation or
  Succession to Business.

  	
   

  
	
  Section 6.12.

  	
  Appointment
  of Authenticating Agent.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  
	
  HOLDERS
  LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  Company
  to Furnish Trustee Names and Addresses of Holders.

  	
   

  
	
  Section 7.2.

  	
  Preservation
  of Information; Communications to Holders.

  	
   

  
	
  Section 7.3.

  	
  Reports by
  Trustee.

  	
   

  
	
  Section 7.4.

  	
  Reports by
  Company.

  	
   

  



 


iii





















 


	
  ARTICLE VIII.

  	
   

  
	
  CONSOLIDATION,
  AMALGAMATIONS, MERGER AND SALES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1.

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

  	
   

  
	
  Section 8.2.

  	
  Successor
  Person Substituted for Company.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
   

  
	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1.

  	
  Supplemental
  Indentures without Consent of Holders.

  	
   

  
	
  Section 9.2.

  	
  Supplemental
  Indentures with Consent of Holders.

  	
   

  
	
  Section 9.3.

  	
  Execution
  of Supplemental Indentures.

  	
   

  
	
  Section 9.4.

  	
  Effect
  of Supplemental Indentures.

  	
   

  
	
  Section 9.5.

  	
  Reference
  in Securities to Supplemental Indentures.

  	
   

  
	
  Section 9.6.

  	
  Conformity
  with Trust Indenture Act.

  	
   

  
	
  Section 9.7.

  	
  Effect
  on Senior Indebtedness.

  	
   

  
	
  Section 9.8.

  	
  Notice
  of Supplemental Indenture.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1.

  	
  Payment of Principal, any Premium,
  Interest and Additional Amounts.

  	
   

  
	
  Section 10.2.

  	
  Maintenance
  of Office or Agency.

  	
   

  
	
  Section 10.3.

  	
  Money
  for Securities Payments to Be Held in Trust.

  	
   

  
	
  Section 10.4.

  	
  Additional
  Amounts.

  	
   

  
	
  Section 10.5.

  	
  Corporate
  Existence.

  	
   

  
	
  Section 10.6.

  	
  Waiver
  of Certain Covenants.

  	
   

  
	
  Section 10.7.

  	
  Company
  Statement as to Compliance; Notice of Certain Defaults.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
   

  
	
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1.

  	
  Applicability
  of Article.

  	
   

  
	
  Section 11.2.

  	
  Election
  to Redeem; Notice to Trustee.

  	
   

  
	
  Section 11.3.

  	
  Selection
  by Trustee of Securities to be Redeemed.

  	
   

  
	
  Section 11.4.

  	
  Notice of
  Redemption.

  	
   

  
	
  Section 11.5.

  	
  Deposit
  of Redemption Price.

  	
   

  
	
  Section 11.6.

  	
  Securities
  Payable on Redemption Date.

  	
   

  
	
  Section 11.7.

  	
  Securities
  Redeemed in Part.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
   

  
	
  SINKING
  FUNDS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.1.

  	
  Applicability
  of Article.

  	
   

  
	
  Section 12.2.

  	
  Satisfaction
  of Sinking Fund Payments with Securities.

  	
   

  
	
  Section 12.3.

  	
  Redemption
  of Securities for Sinking Fund.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII.

  	
   

  
	
  REPAYMENT AT THE
  OPTION OF HOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.1.

  	
  Applicability
  of Article.

  	
   

  



 


iv





















 


	
  ARTICLE XIV.

  	
   

  
	
  SECURITIES IN FOREIGN
  CURRENCIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.1.

  	
  Applicability
  of Article.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV.

  	
   

  
	
  MEETINGS OF HOLDERS
  OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.1.

  	
  Purposes
  for Which Meetings May Be Called.

  	
   

  
	
  Section 15.2.

  	
  Call, Notice and Place of Meetings.

  	
   

  
	
  Section 15.3.

  	
  Persons
  Entitled to Vote at Meetings.

  	
   

  
	
  Section 15.4.

  	
  Quorum; Action.

  	
   

  
	
  Section 15.5.

  	
  Determination
  of Voting Rights; Conduct and Adjournment of Meetings.

  	
   

  
	
  Section 15.6.

  	
  Counting
  Votes and Recording Action of Meetings.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI.

  	
   

  
	
  SUBORDINATION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 16.1.

  	
  Agreement
  to Subordinate.

  	
   

  
	
  Section 16.2.

  	
  Default
  on Senior Indebtedness.

  	
   

  
	
  Section 16.3.

  	
  Liquidation;
  Dissolution; Bankruptcy.

  	
   

  
	
  Section 16.4.

  	
  Subrogation.

  	
   

  
	
  Section 16.5.

  	
  Trustee
  to Effectuate Subordination.

  	
   

  
	
  Section 16.6.

  	
  Notice by the
  Company.

  	
   

  
	
  Section 16.7.

  	
  Rights
  of the Trustee; Holders of Senior Indebtedness.

  	
   

  
	
  Section 16.8.

  	
  Subordination
  May Not Be Impaired.

  	
   

  
	
  Section 16.9.

  	
  Rights
  of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s
  Rights.

  	
   

  



 


v





















 


INDENTURE, dated as of December 14, 2004 (the “Indenture”),
between THE PEP BOYS—MANNY, MOE & JACK, a company duly organized and
existing under the laws of Pennsylvania (hereinafter called the “Company”),
having its principal executive office located at 311 West Allegheny Avenue,
Philadelphia, Pennsylvania 19132 and WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of the
United States of America (hereinafter called the “Trustee”), having its
Corporate Trust Office located at 123 South Broad Street, Corporate Trust
Administration-PA 1249, Philadelphia, Pennsylvania 19109.


 


RECITALS


 


The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (hereinafter
called the “Securities”), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.


 


The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been
done.


 


This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE I.


 


DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.1.                                   Definitions.


 


Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:


 


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


 


(2)                                  all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;


 





















 


(3)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States of America and, except as otherwise herein expressly provided, the terms
“generally accepted accounting principles” or “GAAP” with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the
date or time of such computation;


 


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


 


(5)                                  the word “or” is always used inclusively (for example, the
phrase “A or B” means “A or B or both,” not “either A or B but not both”).


 


Certain terms used principally in certain Articles hereof are defined
in those Articles.


 


“Act,” when used with respect to any Holders, has the meaning specified
in Section 1.4.


 


“Additional Amounts” means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing
to such Holders.


 


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


 


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


 


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


 


“Authorized Officer” means, when used with respect to the Company or
any guarantor of the Company’s obligations under this Indenture or the
Securities of any series, the Chairman of the Board of Directors, a Vice
Chairman, the President, the Chief Financial Officer, the Chief Investment
Officer, the Chief Accounting Officer, the General Counsel, the Secretary or a
Vice President of the Company or such guarantor.


 


2





















 


“Bearer Security” means any Security in the form established pursuant
to Section 2.1 which is payable to bearer.


 


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


 


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


 


“Business Day,” with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to Section 3.1,
any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.


 


“Capital Lease Obligation” of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability
on the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation 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. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with generally accepted accounting principles.


 


“Capital Stock” of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general
or limited, of such Person.


 


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


 


“Common Stock” of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other class of such
Person.


 


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


 


“Company Request” and “Company Order” mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by an
Authorized Officer, and delivered to the Trustee.


 


3





















 


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


 


“Corporate Trust Office” means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at 123 South Broad Street, Corporate Trust
Administration––PA 1249, Philadelphia, Pennsylvania  19109.


 


“Corporation” includes corporations and limited liability companies
and, except for purposes of Article VIII, associations, companies and
business trusts.


 


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


 


“Currency,” with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required
to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated
by the terms hereof or such Security, means Dollars.


 


“CUSIP number” means the alphanumeric designation assigned to a
Security by Standard & Poor’s Ratings Service, CUSIP Service Bureau.


 


“Defaulted Interest” has the meaning specified in Section 3.7.


 


“Dollars” or “$” means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.


 


“Event of Default” has the meaning specified in Section 5.1.


 


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


 


“Government Obligations” means securities which are (i) direct
obligations of the United States of America or the other government or
governments which issued the Foreign Currency in which the principal of or any
premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such other
government or governments, in each case where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government or governments, and
which, in the case of (i) or (ii), are not callable or redeemable at the option
of the issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of or
other amount


 


4





















 


with respect to any such Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or the
specific payment of interest on or principal of or other amount with respect to
the Government Obligation evidenced by such depository receipt.


 


“Holder,” in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.


 


“Indebtedness” means, with respect to any Person, (i) the principal of
and any premium and interest on (a) indebtedness of such Person for money
borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person; (iii) all obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business); (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker’s acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through (iii) 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); (v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; (vi) all obligations of the type referred to
in clauses (i) through (v) of other Persons secured by any Lien on any property
or asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured;
and (vii) any amendments, modifications, refundings, renewals or extensions of
any indebtedness or obligation described as Indebtedness in clauses (i) through
(vi) above.


 


“Indenture” means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms
and provisions may be amended pursuant to the applicable provisions hereof).


 


“Independent Public Accountants” means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the
meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of any
legal matters relating to this Indenture or certificates required to be
provided hereunder.


 


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“Indexed Security” means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.


 


“Interest,” with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such
Additional Amounts.


 


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


 


“Judgment Currency” has the meaning specified in Section 1.16.


 


“Legal Holiday” has the meaning specified in Section 1.14.


 


“Lien” means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any sale and leaseback arrangement, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).


 


 “Maturity,” with respect to any
Security, means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in or pursuant to
this Indenture, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption or repurchase, notice of option to elect
repayment or otherwise, and includes the Redemption Date.


 


“New York Banking Day” has the meaning specified in Section 1.16.


 


“Office” or “Agency”, with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for
such Securities pursuant to Section 10.2 or any other office or agency of
the Company maintained or designated for such Securities pursuant to Section 10.2
or, to the extent designated or required by Section 10.2 in lieu of such
office or agency, the Corporate Trust Office of the Trustee.


 


“Officer’s Certificate” means a certificate signed by an Authorized
Officer that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.


 


“Opinion of Counsel” means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the
Trust Indenture Act, complies with the requirements of Section 314(e) of
the Trust Indenture Act.


 


“Original Issue Discount Security” means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.


 


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


 


(a)                                  any such Security theretofore cancelled by the Trustee or
the Security Registrar or delivered to the Trustee or the Security Registrar
for cancellation;


 


(b)                                 any
such Security for whose payment at the Maturity thereof money in the necessary
amount has been theretofore deposited pursuant hereto (other than pursuant to Section 4.2)
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any Coupons
appertaining thereto, provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;


 


(c)                                  any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except to the extent provided
in Section 4.2;


 


(d)                                 any
such Security which has been paid pursuant to Section 3.6 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, unless there shall have been presented to the
Trustee proof satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation of the Company;
and


 


(e)                                  any such Security converted or exchanged as contemplated by
this Indenture into Common Stock of the Company or other securities, if the
terms of such Security provide for such conversion or exchange pursuant to Section 3.1;


 


provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof that pursuant to
the terms of such Original Issue Discount Security would be declared (or shall
have been declared to be) due and payable upon a declaration of acceleration
thereof pursuant to Section 5.2 at the time of such determination, and (ii)
the principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of


 


7





















 


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


 


“Paying Agent” means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.


 


“Person” means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.


 


“Place of Payment,” with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.


 


“Predecessor Security” of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or
in lieu of a lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.


 


“Preferred Stock” of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment
of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.


 


 “Redemption Date,” with respect
to any Security or portion thereof to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture or such Security.


 


“Redemption Price,” with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.


 


“Registered Security” means any Security established pursuant to Section 2.1
which is registered in a Security Register.


 


“Regular Record Date” for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the “Regular
Record Date”.


 


“Required Currency” has the meaning specified in Section 1.16.


 


“Responsible Officer” means any officer within the corporate trust
department or the Trustee, including vice president, any assistant vice
president, any assistant secretary, assistant


 


8





















 


treasurer, any trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


“Security” or “Securities” means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities,” with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.


 


“Security Register” and “Security Registrar” have the respective
meanings specified in Section 3.5.


 


“Senior Indebtedness” means, with respect to the Securities of any
particular series, all Indebtedness of the Company outstanding at any time,
except (a) the Securities of such series, (b) Indebtedness as to which, by
the terms of the instrument creating or evidencing the same, it is provided
that such Indebtedness is subordinated to or pari passu
with the Securities of such series, (c) Indebtedness of the Company to an
Affiliate of the Company, (d) interest accruing after the filing of a petition
initiating any proceeding referred to in Section 5.1(7) and Section 5.1(c)(8)
unless such interest is an allowed claim enforceable against the Company in a
proceeding under federal or state bankruptcy laws and (e) trade accounts
payable.


 


“Special Record Date” for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.


 


“Stated Maturity,” with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.


 


“Subsidiary” means, in respect of any Person, any Corporation, limited
or general partnership or other business entity of which at the time of
determination more than 50% of the voting power of the shares of its Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is 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.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.


 


9





















 


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


 


“United States,” except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.


 


“U.S. Depository” or “Depository” means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person, “U.S.
Depository” or “Depository” shall mean, with respect to any Securities, the
qualifying entity which has been appointed with respect to such Securities.


 


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


 


Section 1.2.                                   Compliance Certificates and Opinions.


 


Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer’s Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, the certificate
or opinion may be combined with the certificate or opinion described above in
this Section 1.2.


 


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


 


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


 


(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 individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion
as to whether or not such condition or covenant has been complied with; and


 


10





















 


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


 


Section 1.3.                                   Form
of Documents Delivered to Trustee.


 


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


 


Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, provided that such counsel, after reasonable
inquiry, has no reason to believe and does not believe that the certificate or
opinion or representations with respect to such matters are erroneous.


 


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


 


Section 1.4.                                   Acts of Holders.


 


(1)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by or pursuant to this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If, but only if, Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article XV, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee, the Company and any agent of the Trustee or
the Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in Section 15.6.


 


11





















 


Without limiting the generality of this Section 1.4, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is
a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such U.S.
Depository’s standing instructions and customary practices.


 


The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other Act, whether or not such Holders remain Holders after
such record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.


 


(2)                                  The
fact and date of the execution by any Person of any such instrument or writing
referred to in this Section 1.4 may be proved in any reasonable manner;
and the Trustee may in any instance require further proof with respect to any
of the matters referred to in this Section.


 


(3)                                  The
ownership, principal amount and serial numbers of Registered Securities held by
any Person, and the date of the commencement and the date of the termination of
holding the same, shall be proved solely and conclusively by the Security
Register. Where such execution is by a signer acting in a capacity other than
such signer’s individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer’s authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other
manner which the Trustee deems sufficient.


 


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


 


12





















 


date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.


 


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


 


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


 


Section 1.5.                                   Notices, etc. to Trustee and Company.


 


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


 


(1)                                  the
Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, or


 


(2)                                  the
Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to the attention
of its Treasurer, with a copy to the attention of its General Counsel, at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.


 


Section 1.6.                                   Notice
to Holders of Securities; Waiver.


 


(1)                                  Except
as otherwise expressly provided in or pursuant to this Indenture, where this
such notice shall be sufficiently given to Holders of Registered Securities if
in writing and mailed, first-class postage prepaid, to each Holder of a
Registered Security affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and


 


13





















 


(2)                                  such
notice shall be sufficiently given to Holders of Bearer Securities, if any, if
published in an Authorized Newspaper in The City of New York and, if such
Securities are then listed on any stock exchange outside the United States, in
an Authorized Newspaper in such city as the Company shall advise the Trustee
that such stock exchange so requires, on a Business Day at least twice, the
first such publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the giving of
such notice.


 


In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.


 


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


 


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


 


Section 1.7.                                   Language of Notices.


 


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


 


Section 1.8.                                   Conflict with Trust Indenture Act.


 


If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by Section 318(c)
thereof, such required provision shall control.


 


Section 1.9.                                   Effect of Headings and Table of Contents.


 


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


 


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Section 1.10.                             Successors and Assigns.


 


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


 


Section 1.11.                             Separability Clause.


 


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


 


Section 1.12.                             Benefits of Indenture.


 


Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto and holders of
Senior Indebtedness, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.


 


Section 1.13.                             Governing Law.


 


This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed wholly
in said state.


 


Section 1.14.                             Legal Holidays.


 


Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or
exchangeable, shall be a day on which banking institutions are authorized or
obligated by law, regulation or executive order to remain closed (a “Legal
Holiday”) at any Place of Payment, then (notwithstanding any other provision of
this Indenture, any Security or any Coupon other than a provision in any
Security or Coupon that specifically states that such provision shall apply in
lieu hereof) payment need not be made at such Place of Payment on such date,
and such Securities need not be converted or exchanged on such date but such
payment may be made, and such Securities may be converted or exchanged, on the
next succeeding day that is a Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity or on such last day for conversion or exchange, and no
interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.


 


Section 1.15.                             Counterparts.


 


This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.


 


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Section 1.16.                             Judgment
Currency.


 


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


 


Section 1.17.                             No
Security Interest Created.


 


Nothing in this Indenture or in any Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.


 


Section 1.18.                             Limitation
on Individual Liability.


 


No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors, as such, of the Company,
or any of them, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, shareholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any Security or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Security.


 


16





















 


Section 1.19.                             Submission
to Jurisdiction.


 


The Company agrees that any judicial proceedings instituted in relation
to any matter arising under this Indenture, the Securities or any Coupons
appertaining thereto may be brought in any United States Federal or New York
State court sitting in the Borough of Manhattan, The City of New York, New York
to the extent that such court has subject matter jurisdiction over the
controversy, and, by execution and delivery of this Indenture, the Company
hereby irrevocably accepts, generally and unconditionally, the jurisdiction of
the aforesaid courts, acknowledges their competence and irrevocably agrees to
be bound by any judgment rendered in such proceeding. The Company also
irrevocably and unconditionally waives for the benefit of the Trustee and the
Holders of the Securities and Coupons any immunity from jurisdiction and any
immunity from legal process (whether through service or notice, attachment
prior to judgment, attachment in the aid of execution, execution or otherwise)
in respect of this Indenture.


 


ARTICLE II.


 


SECURITIES FORMS


 


Section 2.1.                                   Forms
Generally.


 


Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the
form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.


 


Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.


 


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


 


Section 2.2.                                   Form
of Trustee’s Certificate of Authentication.


 


Subject to Section 6.12, the Trustee’s certificate of
authentication shall be in substantially the following form:


 


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


 


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  [TRUSTEE

  NAME],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  



 


Section 2.3.                                   Securities
in Global Form.


 


If Securities of a series shall be issuable in global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or Section 3.4
with respect thereto. Subject to the provisions of Section 3.3 and, if
applicable, Section 3.4, the Trustee shall deliver and redeliver, in each
case at the Company’s expense, any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 3.3
or Section 3.4 has been, or simultaneously is, delivered, any instructions
by the Company with respect to a Security in global form shall be in writing
but need not be accompanied by or contained in an Officer’s Certificate and
need not be accompanied by an Opinion of Counsel.


 


Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or permanent global form shall be made to
the Person or Persons specified therein.


 


Notwithstanding the provisions of Section 3.8 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 3.1.


 


ARTICLE III.


 


THE SECURITIES


 


Section 3.1.                                   Amount
Unlimited; Issuable in Series.


 


The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more series. The Securities of each series shall be subordinated in
right of payment to all Senior Indebtedness with respect to such series as
provided in Article XVI.


 


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With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer’s Certificate, or established in one or more indentures
supplemental hereto,


 


(1)                                  the
title of such Securities and the series in which such Securities shall be
included;


 


(2)                                  any
limit upon the aggregate principal amount of the Securities of such title or
the Securities of such series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 3.3, Section 3.5, Section 3.6,
Section 9.5 or Section 11.7, upon repayment in part of any Registered
Security of such series pursuant to Article XIII, upon surrender in part
of any Registered Security for conversion into Common Stock of the Company or
exchange for other securities pursuant to its terms, or pursuant to or as
contemplated by the terms of such Securities);


 


(3)                                  if
such Securities are to be issuable as Registered Securities, as Bearer
Securities or alternatively as Bearer Securities and Registered Securities, and
whether the Bearer Securities are to be issuable with Coupons, without Coupons
or both, and any restrictions applicable to the offer, sale or delivery of the
Bearer Securities and the terms, if any, upon which Bearer Securities may be
exchanged for Registered Securities and vice versa;


 


(4)                                  if
any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such Securities
are to be issued in temporary or permanent global form or both, (ii) whether
beneficial owners of interests in any such global Security may exchange such
interests for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section 3.5,
and (iii) the name of the Depository or the U.S. Depository, as the case may
be, with respect to any such global Security;


 


(5)                                  if
any of such Securities are to be issuable as Bearer Securities or in global
form, the date as of which any such Bearer Security or global Security shall be
dated (if other than the date of original issuance of the first of such
Securities to be issued);


 


(6)                                  if
any of such Securities are to be issuable as Bearer Securities, whether
interest in respect of any portion of a temporary Bearer Security in global
form payable in respect of an Interest Payment Date therefor prior to the
exchange, if any, of such temporary Bearer Security for definitive Securities
shall be paid to any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such event, the terms
and conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;


 


(7)                                  the
date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which the principal of such Securities is payable;


 


(8)                                  the
rate or rates at which such Securities shall bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined,
the date or dates, if any, from


 


19





















 


which such
interest shall accrue or the method or methods, if any, by which such date or
dates are to be determined, the Interest Payment Dates, if any, on which such
interest shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of them
shall be payable, the notice, if any, to Holders regarding the determination of
interest on a floating rate Security and the manner of giving such notice, and
the basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;


 


(9)                                  if
in addition to or other than the Borough of Manhattan, The City of New York,
the place or places where the principal of, any premium and interest on or any
Additional Amounts with respect to such Securities shall be payable, any of
such Securities that are Registered Securities may be surrendered for
registration of transfer or exchange, any of such Securities may be surrendered
for conversion or exchange and notices or demands to or upon the Company in
respect of such Securities and this Indenture may be served, the extent to
which, or the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the manner in
which any principal of or premium, if any, on any global Security will be paid;


 


(10)                            whether
any of such Securities are to be redeemable at the option of the Company and,
if so, the date or dates on which, the period or periods within which, the
price or prices at which and the other terms and conditions upon which such
Securities may be redeemed, in whole or in part, at the option of the Company;


 


(11)                            whether
the Company is obligated to redeem or purchase any of such Securities pursuant
to any sinking fund or analogous provision or at the option of any Holder
thereof and, if so, the date or dates on which, the period or periods within
which, the price or prices at which and the other terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of such
Securities so redeemed or purchased;


 


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


 


(13)                            whether
the Securities of the series will be convertible into shares of Common Stock of
the Company and/or exchangeable for other securities, whether or not issued by
the Company, and, if so, the terms and conditions upon which such Securities
will be so convertible or exchangeable, and any deletions from or modifications
or additions to this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;


 


(14)                            if
other than the principal amount thereof, the portion of the principal amount of
any of such Securities that shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2 or the method by which
such portion is to be determined;


 


(15)                            if
other than Dollars, the Foreign Currency in which payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of
such Securities shall be payable;


 


20





















 


(16)                            if
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities are to be payable, at the election of the Company
or a Holder thereof or otherwise, in Dollars or in a Foreign Currency other
than that in which such Securities are stated to be payable, the date or dates
on which, the period or periods within which, and the other terms and
conditions upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such Securities are
stated to be payable and the Currency in which such Securities or any of them
are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide for or
to facilitate the issuance of Securities denominated or payable, at the
election of the Company or a Holder thereof or otherwise, in a Foreign Currency;


 


(17)                            whether
the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with
reference to an index, formula or other method or methods (which index, formula
or method or methods may be based, without limitation, on one or more
Currencies, commodities, equity securities, equity indices or other indices),
and, if so, the terms and conditions upon which and the manner in which such
amounts shall be determined and paid or payable;


 


(18)                            the
relative degree, if any, to which Securities of such series shall be senior to
or be subordinated to other series of Securities or other Indebtedness of the
Company in right of payment, whether such other series of Securities or other
Indebtedness is outstanding or not;


 


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


 


(20)                            whether
either or both of Section 4.2(2) relating to defeasance or Section 4.2(3)
relating to covenant defeasance shall not be applicable to the Securities of
such series, or any covenants in addition to those specified in Section 4.2(3)
relating to the Securities of such series which shall be subject to covenant
defeasance, and any deletions from, or modifications or additions to, the
provisions of Article IV in respect of the Securities of such series;


 


(21)                            whether
any of such Securities are to be issuable upon the exercise of warrants, and
the time, manner and place for such Securities to be authenticated and
delivered;


 


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


 


(23)                            if
there is more than one Trustee, the identity of the Trustee and, if not the
Trustee, the identity of each Security Registrar, Paying Agent or
Authenticating Agent with respect to such Securities; and


 


(24)                            any
other terms of such Securities and any other deletions from or modifications or
additions to this Indenture in respect of such Securities.


 


All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder,


 


21





















 


denomination and the rate of interest thereon, or method of determining
the rate of interest, if any, Maturity, and the date from which interest, if
any, shall accrue and except as may otherwise be provided by the Company in or
pursuant to the Board Resolution and set forth in the Officer’s Certificate or
in any indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide, without
limitation, that the Securities shall be authenticated and delivered by the
Trustee on original issue from time to time upon written order of persons
designated in the Officer’s Certificate or supplemental indenture and that such
persons are authorized to determine, consistent with such Officer’s Certificate
or any applicable supplemental indenture, such terms and conditions of the
Securities of such series as are specified in such Officer’s Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.


 


If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officer’s Certificate setting forth the terms of such series.


 


Section 3.2.                                   Currency;
Denominations.


 


Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof. Securities not denominated in Dollars shall
be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.


 


Section 3.3.                                   Execution,
Authentication, Delivery and Dating.


 


Securities shall be executed on behalf of the Company by its Chairman
of the Board, a Vice Chairman, its President, Chief Financial Officer, Chief
Investment Officer or Chief Accounting Officer under its corporate seal
reproduced thereon and attested by its Secretary. Coupons shall be executed on
behalf of the Company by the Chief Financial Officer or Chief Accounting
Officer of the Company. The signature of any of these officers on the
Securities or any Coupons appertaining thereto may be manual or facsimile.


 


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


 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Board Resolution and Officer’s
Certificate or supplemental indenture or indentures with respect to such
Securities referred to in Section 3.1 and a Company Order for the
authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver such


 


22





















 


Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the
Trustee shall be entitled to receive, and (subject to Sections 315(a) through
315(d) of the Trust Indenture Act) shall be fully protected in relying upon,


 


(1)                                  a
copy of the resolution or resolutions of the Board of Directors in or pursuant
to which the terms and form of the Securities were established, certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect as of the
date of such certificate, and if the terms and form of such Securities are
established by an Officers’ Certificate pursuant to general authorization of
the Board of Directors, such Officers’ Certificate;


 


(2)                                  an
executed supplemental indenture, if any;


 


(3)                                  an
Officers’ Certificate delivered in accordance with Section 1.2; and


 


(4)                                  an
Opinion of Counsel to the effect that:


 


(a)                                  the
form or forms and terms of such Securities and Coupons, if any, have been
established in conformity with the provisions of this Indenture;


 


(b)                                 all
conditions precedent to the authentication and delivery of such Securities and
Coupons, if any, appertaining thereto, have been complied with and that such
Securities and Coupons, when completed by appropriate insertions, executed
under the Company’s corporate seal and attested by duly authorized officers of
the Company, delivered by duly authorized officers of the Company to the
Trustee for authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute legally
valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement thereof may be subject to
or limited by bankruptcy, insolvency, reorganization, moratorium, arrangement,
fraudulent conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors’ rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law) and will entitle the Holders thereof to the benefits of this
Indenture; such Opinion of Counsel need express no opinion as to the
availability of equitable remedies;


 


(c)                                  all
laws and requirements in respect of the execution and delivery by the Company
of such Securities and Coupons, if any, have been complied with; and


 


(d)                                 this
Indenture has been qualified under the Trust Indenture Act; and


 


(5)                                  an
Officer’s Certificate stating that all conditions precedent to the execution,
authentication and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and that, to the best knowledge
of the Persons executing such certificate, no event which is, or after notice
or lapse of time would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.


 


23





















 


If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officer’s
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
or any person designated in writing by an Authorized Officer that the Trustee
authenticate and deliver Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.


 


The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.


 


Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as
of the date specified in or pursuant to this Indenture.


 


No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or Section 6.12 executed by or
on behalf of the Trustee or by the Authenticating Agent by the manual signature
of one of its authorized officers. Such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.6
or Section 3.7, the Trustee shall not authenticate and deliver any Bearer
Security unless all Coupons appertaining thereto then matured have been
detached and cancelled.


 


Section 3.4.                                   Temporary
Securities.


 


Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized in or pursuant to this Indenture, in bearer
form with one or more Coupons or without Coupons and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. Such temporary Securities may be in
global form.


 


Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared
without unreasonable delay. After the preparation of definitive Securities of
the same series and containing terms and provisions that are identical to those
of any temporary Securities, such temporary Securities shall be exchangeable
for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof.
Upon surrender for cancellation of any one or


 


24





















 


more temporary Securities (accompanied by any
unmatured Coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered Security;
and provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.


 


Section 3.5.                                   Registration,
Transfer and Exchange.


 


With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the “Security Register”) at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the “Security Registrar” for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.


 


Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of
a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.


 


At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.


 


If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to


 


25





















 


be exchanged at any Office or Agency for such
series, with all unmatured Coupons and all matured Coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured Coupon or Coupons or matured Coupon or Coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company and the Trustee in an amount equal to the face
amount of such missing Coupon or Coupons, or the surrender of such missing Coupon
or Coupons may be waived by the Company and the Trustee if there is furnished
to them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Bearer Security
shall surrender to any Paying Agent any such missing Coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable
only upon presentation and surrender of those Coupons at an Office or Agency
for such series located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such Office
or Agency for such series in exchange for a Registered Security of such series
and like tenor after the close of business at such Office or Agency on (i) any
Regular Record Date and before the opening of business at such Office or Agency
on the next succeeding Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such Office or Agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security, such Coupon shall be returned to the Person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case may be,
shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.


 


If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such
series may be exchanged for Bearer Securities upon such terms and conditions as
may be provided in or pursuant to this Indenture with respect to such series.


 


Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.


 


Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing


 


26





















 


identical terms and in aggregate principal
amount equal to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing), as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company’s agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities as
described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further,
that (unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date, or (ii) any Special Record Date for such Security and before the
opening of business at such Office or Agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.


 


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


 


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


 


27





















 


No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, Section 9.5 or Section 11.7
not involving any transfer.


 


Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of Securities of like
tenor and the same series under Section 11.3 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Registered Security selected for redemption in whole or in part,
except in the case of any Security to be redeemed in part, the portion thereof
not to be redeemed, or (iii) to exchange any Bearer Security selected for
redemption except, to the extent provided with respect to such Bearer Security,
that such Bearer Security may be exchanged for a Registered Security of like
tenor and the same series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.


 


Section 3.6.                                   Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
containing identical terms and of like principal amount and bearing a number
not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to the surrendered Security.


 


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


 


Notwithstanding the foregoing provisions of this Section 3.6, in
case any mutilated, destroyed, lost or stolen Security or Coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in


 


28





















 


Section 10.2, be payable only at an
Office or Agency for such Securities located outside the United States and,
unless otherwise provided in or pursuant to this Indenture, any interest on
Bearer Securities and any Additional Amounts with respect to such interest
shall be payable only upon presentation and surrender of the Coupons appertaining
thereto.


 


Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.


 


Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
Coupon appertains shall constitute a separate obligation of the Company,
whether or not the destroyed, lost or stolen Security and Coupons appertaining
thereto or the destroyed, lost or stolen Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of such
series and any Coupons, if any, duly issued hereunder.


 


The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.


 


Section 3.7.                                   Payment
of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved.


 


Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.


 


Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:


 


(1)                                  The
Company may elect to make payment of any Defaulted Interest to the Person in
whose name such Registered Security (or a Predecessor Security thereof) shall
be registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed by the Company in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on such Registered Security, the
Special Record Date therefor 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 on or prior to the date of the proposed payment, such money when


 


29





















 


so deposited
to be held in trust for the benefit of the Person entitled to such Defaulted
Interest as in this Clause provided. The Special Record Date for the payment of
such Defaulted Interest 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 12 days after
notification to the Trustee of the proposed payment. The Trustee shall, in the
name and at the expense of the Company, cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).


 


(2)                                  The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such
Security 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 payment shall be deemed practicable by
the Trustee.


 


Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the
United States.


 


Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


In the case of any Registered Security of any series that is
convertible into shares of Common Stock of the Company or exchangeable for
other securities, which Registered Security is converted or exchanged after any
Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Registered Security with respect to which the Stated
Maturity is prior to such Interest Payment Date), interest with respect to
which the Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion or exchange, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Registered Security (or one or more
predecessor Registered Securities) is registered at the close of business on
such Regular Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Registered Security which is
converted or exchanged, interest with respect to which the Stated Maturity is
after the date of conversion or exchange of such Registered Security shall not
be payable.


 


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Section 3.8.                                   Persons
Deemed Owners.


 


Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in
the Security Register as the owner of such Registered Security for the purpose
of receiving payment of principal of, any premium and (subject to Section 3.5
and Section 3.7) interest on and any Additional Amounts with respect to
such Registered Security and for all other purposes whatsoever, whether or not
any payment with respect to such Registered Security shall be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.


 


No Holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such
global Security for all purposes whatsoever. None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.


 


Section 3.9.                                   Cancellation.


 


All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Coupons, as
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be cancelled
promptly by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by or pursuant to this Indenture. All cancelled Securities
and Coupons held by the Trustee shall be disposed of by the Trustee in
accordance with its normal operating procedures, unless by a Company Order the
Company directs their return to it.


 


Section 3.10.                             Computation
of Interest.


 


Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.


 


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ARTICLE IV.


 


SATISFACTION AND
DISCHARGE OF INDENTURE


 


Section 4.1.                                   Satisfaction
and Discharge.


 


Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when


 


(1)                                  either


 


(a)                                  all
Securities of such series theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for Registered Securities of
such series and maturing after such exchange whose surrender is not required or
has been waived as provided in Section 3.5, (ii) Securities and
Coupons of such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date whose surrender has been waived as provided
in Section 11.7, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or


 


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


 


(i)                                     have
become due and payable, or


 


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


 


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


 


and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for such purpose,
money in the Currency in which such Securities are payable in an amount
sufficient to pay and discharge the entire indebtedness on such Securities and
any Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation, including the principal of, any premium and interest on, and any
Additional Amounts with respect to such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Maturity thereof, as the case may be;


 


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(2)                                  the
Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Outstanding Securities of such series and any
Coupons appertaining thereto; and


 


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


 


In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to Securities
of such series as to which it is Trustee and if the other conditions thereto
are met.


 


Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.7 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of
such series under Section 3.5, Section 3.6, Section 4.3, Section 10.2
and Section 10.3, with respect to the payment of Additional Amounts, if
any, with respect to such Securities as contemplated by Section 10.4 (but
only to the extent that the Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional Amounts
pursuant to Section 4.1(b)), and with respect to any rights to convert or
exchange such Securities into Common Stock of the Company or other securities
shall survive.


 


Section 4.2.                                   Defeasance
and Covenant Defeasance.


 


(1)                                  Unless
pursuant to Section 3.1, either or both of (i) defeasance of the
Securities of or within a series under clause (2) of this Section 4.2
shall not be applicable with respect to the Securities of such series or (ii)
covenant defeasance of the Securities of or within a series under clause (3) of
this Section 4.2 shall not be applicable with respect to the Securities of
such series, then such provisions, together with the other provisions of this Section 4.2
(with such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3)
be applied to such Outstanding Securities and any Coupons appertaining thereto
upon compliance with the conditions set forth below in this Section 4.2.


 


(2)                                  Upon
the Company’s exercise of the above option applicable to this Section 4.2(2)
with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, “defeasance”). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities and any Coupons appertaining
thereto, which shall thereafter be deemed to be “Outstanding” only for the
purposes of clause (5) of this Section 4.2 and the other Sections of this
Indenture referred to in clauses (i) and (ii) below, and to have satisfied all
of its other obligations under such Securities and any Coupons appertaining
thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee,


 


33





















 


at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Outstanding Securities
and any Coupons appertaining thereto to receive, solely from the trust fund
described in clause (4) of this Section 4.2 and as more fully set forth in
such clause, payments in respect of the principal of (and premium, if any) and
interest, if any, on, and Additional Amounts, if any, with respect to, such
Securities and any Coupons appertaining thereto when such payments are due, and
any rights of such Holder to convert such Securities into Common Stock of the
Company or exchange such Securities for other securities, (ii) the obligations
of the Company and the Trustee with respect to such Securities under Section 3.5,
Section 3.6, Section 10.2 and Section 10.3 and with respect to
the payment of Additional Amounts, if any, on such Securities as contemplated
by Section 10.4 (but only to the extent that the Additional Amounts
payable with respect to such Securities exceed the amount deposited in respect
of such Additional Amounts pursuant to Section 4.2(a) below), and with
respect to any rights to convert such Securities into Common Stock of the
Company or exchange such Securities for other securities, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.2
The Company may exercise its option under this Section 4.2(2)
notwithstanding the prior exercise of its option under clause (3) of this Section 4.2
with respect to such Securities and any Coupons appertaining thereto.


 


(3)                                  Upon
the Company’s exercise of the option to have this Section 4.2(3) apply
with respect to any Securities of or within a series, the Company shall be
released from its obligations under any covenant applicable to such Securities
specified pursuant to Section 3.1(20), with respect to such Outstanding Securities
and any Coupons appertaining thereto on and after the date the conditions set
forth in clause (4) of this Section 4.2 are satisfied (hereinafter, “covenant
defeasance”), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding”
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under Section 5.1(4)
or Section 5.1(9) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and
Coupons appertaining thereto shall be unaffected thereby.


 


(4)                                  The
following shall be the conditions to application of clause (2) or (3) of this Section 4.2
to any Outstanding Securities of or within a series and any Coupons
appertaining thereto:


 


(a)                                  The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 6.8 who
shall agree to comply with the provisions of this Section 4.2 applicable
to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
(1) an amount in Dollars or in such Foreign Currency in which such Securities
and any Coupons appertaining thereto are then specified as payable


 


34





















 


at Stated Maturity, or (2)
Government Obligations applicable to such Securities and Coupons appertaining
thereto (determined on the basis of the Currency in which such Securities and
Coupons appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons appertaining thereto,
money in an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (y) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities and any
Coupons appertaining thereto at the Stated Maturity of such principal or
installment of principal or premium or interest and (z) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding Securities
and any Coupons appertaining thereto on the days on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any Coupons appertaining thereto.


 


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


 


(c)                                  No
Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to such Securities and any Coupons
appertaining thereto shall have occurred and be continuing on the date of such
deposit and, with respect to defeasance only, at any time during the period
ending on the 123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period).


 


(d)                                 In
the case of an election under clause (2) of this Section 4.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a letter ruling, or
there has been published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred.


 


(e)                                  In
the case of an election under clause (3) of this Section 4.2, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.


 


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(f)                                    The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, after the 123rd day after the date of deposit, all money and Government
Obligations (or other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited or caused to be deposited with the
Trustee (or other qualifying trustee) pursuant to this clause (4) to be held in
trust will not be subject to any case or proceeding (whether voluntary or
involuntary) in respect of the Company under any Federal or State bankruptcy,
insolvency, reorganization or other similar law, or any decree or order for
relief in respect of the Company issued in connection therewith.


 


(g)                                 The
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2
(as the case may be) have been complied with.


 


(h)                                 Notwithstanding
any other provisions of this Section 4.2(4), such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the Company in
connection therewith pursuant to Section 3.1.


 


(5)                                  Unless
otherwise specified in or pursuant to this Indenture or any Security, if, after
a deposit referred to in Section 4.2(4)(a) has been made, (a) the Holder
of a Security in respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 3.1 or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant to Section 4.2(4)(a)
has been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a)
has been made, the indebtedness represented by such Security and any Coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any), and interest, if any, on, and Additional Amounts, if any, with respect
to, such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on (x) in the case of payments made pursuant
to clause (a) above, the applicable market exchange rate for such Currency in
effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event.


 


The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3,
the “Trustee”) against any tax, fee or other charge, imposed on or assessed
against the Government Obligations deposited pursuant to this Section 4.2
or the principal or interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.


 


Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of


 


36





















 


the amount thereof which would then be
required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 4.2.


 


Section 4.3.                                   Application
of Trust Money.


 


Subject to the provisions of the last paragraph of Section 10.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with
the Trustee pursuant to Section 4.1 or Section 4.2 in respect of any
Outstanding Securities of any series and any Coupons appertaining thereto shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and any Coupons appertaining thereto and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities and any Coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest
and Additional Amounts, if any; but such money and Government Obligations need
not be segregated from other funds except to the extent required by law.


 


ARTICLE V.


 


REMEDIES


 


Section 5.1.                                   Events
of Default.


 


“Event of Default,” wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless such event is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Officer’s
Certificate establishing the terms of such Series pursuant to this Indenture:


 


(1)                                  default
in the payment of any interest on any Security of such series, or any
Additional Amounts payable with respect thereto, when such interest becomes or
such Additional Amounts become due and payable, and continuance of such default
for a period of 30 days;


 


(2)                                  default
in the payment of the principal of or any premium on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
principal or premium becomes or such Additional Amounts become due and payable
at their Maturity;


 


(3)                                  default
in the deposit of any sinking fund payment when and as due by the terms of a
Security of such series;


 


(4)                                  default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture or the Securities (other than a covenant or warranty a default
in the performance or the breach of which is elsewhere in this Section specifically
dealt with or which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than such series), and continuance
of such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of


 


37





















 


such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;


 


(5)                                  if
any event of default as defined in any mortgage, indenture or instrument under
which there may be issued, or by which there may be secured or evidenced, any
Indebtedness of the Company (including an Event of Default under any other
series of Securities), whether such Indebtedness now exists or shall hereafter
be created or incurred, shall happen and shall consist of default in the
payment of more than $10,000,000 in principal amount of such Indebtedness at
the maturity thereof (after giving effect to any applicable grace period) or
shall result in such Indebtedness in principal amount in excess of $10,000,000
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such default shall not be cured or such
acceleration shall not be rescinded or annulled within a period of 30 days
after there 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 principal amount of the Outstanding Securities of such series, a
written notice specifying such event of default and requiring the Company to
cause such default to be cured or to cause such acceleration to be rescinded or
annulled or to cause such Indebtedness to be discharged and stating that such
notice is a “Notice of Default” hereunder;


 


(6)                                  the
Company shall fail within 60 days to pay, bond or otherwise discharge any
uninsured judgment or court order for the payment of money in excess of
$10,000,000, which is not stayed on appeal or is not otherwise being appropriately
contested in good faith;


 


(7)                                  the
entry by a court having competent jurisdiction of:


 


(a)                                  a
decree or order for relief in respect of the Company in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization (other
than a reorganization under a foreign law that does not relate to insolvency)
or other similar law and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days;


 


(b)                                 a
decree or order adjudging the Company to be insolvent, or approving a petition
seeking reorganization (other than a reorganization under a foreign law that
does not relate to insolvency), arrangement, adjustment or composition of the
Company and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or


 


(c)                                  a
final and non-appealable order appointing a custodian, receiver, liquidator,
assignee, trustee or other similar official of the Company or of any
substantial part of the property of the Company or ordering the winding up or
liquidation of the affairs of the Company;


 


(8)                                  the
commencement by the Company of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization (other than a reorganization under a
foreign law that does not relate to insolvency) or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings against it, or
the filing by the Company of a petition or answer or consent seeking
reorganization, arrangement,


 


38





















 


adjustment or
composition of the Company or relief under any applicable law, or the consent
by the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee or
similar official of the Company or any substantial part of the property of the
Company or the making by the Company of an assignment for the benefit of
creditors, or the taking of corporate action by the Company in furtherance of
any such action; or


 


(9)                                  any
other Event of Default provided in or pursuant to this Indenture with respect
to Securities of such series.


 


Section 5.2.                                   Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of such
series may declare the principal of all the Securities of such series, or such
lesser amount as may be provided for in the Securities of such series, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
or such lesser amount shall become immediately due and payable.


 


If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such 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 of any Security of that series.


 


At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if


 


(1)                                  the
Company has paid or deposited with the Trustee a sum of money sufficient to pay


 


(a)                                  all
overdue installments of any interest on and Additional Amounts with respect to
all Securities of such series and any Coupon appertaining thereto,


 


(b)                                 the
principal of and any premium on any Securities of such series which have become
due otherwise than by such declaration of acceleration and interest thereon and
any Additional Amounts with respect thereto at the rate or rates borne by or
provided for in such Securities,


 


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


 


39





















 


(d)                                 all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
all other amounts due the Trustee under Section 6.7; and


 


(2)                                  all
Events of Default with respect to Securities of such series, other than the
non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to Securities of such series which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 5.13.


 


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


 


Section 5.3.                                   Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that if


 


(1)                                  default
is made in the payment of any installment of interest on or any Additional
Amounts with respect to any Security or any Coupon appertaining thereto when
such interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or


 


(2)                                  default
is made in the payment of the principal of or any premium on any Security or
any Additional Amounts with respect thereto at their Maturity,


 


the Company shall, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities and any Coupons appertaining
thereto, the whole amount of money then due and payable with respect to such
Securities and any Coupons appertaining thereto, with interest upon the overdue
principal, any premium and, to the extent that payment of such interest shall
be legally enforceable, upon any overdue installments of interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount of money as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee under Section 6.7.


 


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


 


If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or


 


40





















 


such Securities or in aid of the exercise of
any power granted herein or therein, or to enforce any other proper remedy.


 


Section 5.4.                                   Trustee
May File Proofs of Claim.


 


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


 


(1)                                  to
file and prove a claim for the whole amount, or such lesser amount as may be
provided for in the Securities of any applicable series, of the principal and
any premium, interest and Additional Amounts owing and unpaid in respect of the
Securities and any Coupons appertaining thereto and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of the
Holders of Securities or any Coupons appertaining thereto allowed in such
judicial proceeding, and


 


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


 


and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities or any Coupons to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities or any Coupons, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.7.


 


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


 


Section 5.5.                                   Trustee
May Enforce Claims without Possession of Securities or Coupons.


 


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


 


41





















 


Section 5.6.                                   Application
of Money Collected.


 


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


 


FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;


 


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


 


THIRD:  The balance, if any, to
the Person or Persons entitled thereto.


 


Section 5.7.                                   Limitations
on Suits.


 


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


 


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


 


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


 


(3)                                  such
Holder or Holders have offered to the Trustee such indemnity as is reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;


 


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


 


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


 


it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any other
Holders or to


 


42





















 


enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.


 


Section 5.8.                                   Unconditional
Right of Holders to Receive Principal and any Premium, Interest and Additional
Amounts.


 


Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Section 3.5 and Section 3.7) interest on, and any Additional Amounts
with respect to such Security or payment of such Coupon, as the case may be, on
the respective Stated Maturity or Maturities therefor specified in such
Security or Coupon (or, in the case of redemption, on the Redemption Date or,
in the case of repayment at the option of such Holder if provided in or
pursuant to this Indenture, on the date such repayment is due) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.


 


Section 5.9.                                   Restoration
of Rights and Remedies.


 


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


 


Section 5.10.                             Rights
and Remedies Cumulative.


 


Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon
is intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not, to the extent permitted by law,
prevent the concurrent assertion or employment of any other appropriate right
or remedy.


 


Section 5.11.                             Delay
or Omission Not Waiver.


 


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


 


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Section 5.12.                             Control
by Holders of Securities.


 


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


 


(1)                                  such
direction shall not be in conflict with any rule of law or with this Indenture or
with the Securities of such series,


 


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


 


(3)                                  such
direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action.


 


Section 5.13.                             Waiver
of Past Defaults.


 


The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default


 


(1)                                  in
the payment of the principal of, any premium or interest on, or any Additional
Amounts with respect to, any Security of such series or any Coupons
appertaining thereto, or


 


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


 


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


 


Section 5.14.                             Waiver
of Usury, Stay or Extension Laws.


 


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


 


Section 5.15.                             Undertaking
for Costs.


 


All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for


 


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any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of any undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in such
suit having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.15 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 10% in
principal amount of Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on or Additional Amounts, if any,
with respect to any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date, and, in the case of repayment, on or after the date for
repayment) or for the enforcement of the right, if any, to convert or exchange
any Security into Common Stock or other securities in accordance with its
terms.


 


ARTICLE VI.


 


THE TRUSTEE


 


Section 6.1.                                   Certain
Duties and Responsibilities.


 


(1)                                  Except
after the occurrence and during the continuance of an Event of Default,


 


(a)                                  the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


(b)                                 in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon 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).


 


(2)                                  In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise 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 his or her own
affairs.


 


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


 


(a)                                  this
Subsection shall not be construed to limit the effect of Subsection (1)
of this Section;


 


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


 


(c)                                  the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any series,
determined as provided in Sections 1.1, 1.4 and 5.12, 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 the Securities of such series; and


 


(d)                                 no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(4)                                  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 6.2.                                   Certain
Rights of Trustee.


 


Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:


 


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


 


(2)                                  any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or a Company Order (in each case, other than
delivery of any Security, together with any Coupons appertaining thereto, to
the Trustee for authentication and delivery pursuant to Section 3.3 which
shall be sufficiently evidenced as provided therein except in the case of an
exchange) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;


 


(3)                                  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 shall be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officer’s Certificate;


 


(4)                                  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, suffered or omitted by it hereunder
in good faith and in reliance thereon;


 


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


 


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


 


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


 


(8)                                  the
Trustee shall not be liable for any action taken or error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent, acted in bad faith or
engaged in willful misconduct;


 


(9)                                  the
Authenticating Agent, Paying Agent, and Security Registrar shall have the same
rights, privileges, protections, immunities, benefits, protections and rights
to indemnification as the Trustee set forth hereunder;


 


(10)                            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 supersede; and


 


(11)                            the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with an Act of the
Holders hereunder, and, to the extent not so provided herein, with respect to
any act requiring the Trustee to exercise its own discretion, 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 or any Securities, unless it shall be proved that, in connection
with any such action taken, suffered or omitted or any such act, the Trustee
was negligent, acted in bad faith or engaged in willful misconduct.


 


Section 6.3.                                   Notice
of Defaults.


 


Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant
to Section 7.3(3), notice of such default hereunder


 


47





















 


actually known to a Responsible Officer of
the Trustee, unless such default shall have been cured or waived; provided,
however, that the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the best interest of the Holders of
Securities and Coupons of such series; and provided, further, that in the case
of any default of the character specified in Section 5.1(5) with respect
to Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.


 


Section 6.4.                                   Not
Responsible for Recitals or Issuance of Securities.


 


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


 


Section 6.5.                                   May
Hold Securities.


 


The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights
it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.


 


Section 6.6.                                   Money
Held in Trust.


 


Except as provided in Section 4.3 and Section 10.3, money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law and shall be held uninvested. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed to in writing with the Company.


 


Section 6.7.                                   Compensation
and Reimbursement.


 


The Company agrees:


 


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


 


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


 


(3)                                  to
indemnify the Trustee and its agents, officers, directors and employees for,
and to hold them harmless against, any loss, damage, claims, liability or
expense including taxes (other than taxes based upon, measured or determined by
income of the Trustee), incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance
of any of their powers or duties hereunder, except to the extent that any such
loss, damage, claims, liability or expense was due to the Trustee’s negligence
or bad faith.


 


As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series 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 or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.


 


To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is
intended to constitute an expense of administration under any then applicable
bankruptcy or insolvency law. “Trustee” for purposes of this Section 6.7
shall include any predecessor Trustee but the negligence or bad faith of any
Trustee shall not affect the rights of any other Trustee under this Section 6.7.


 


The provisions of this Section 6.7 shall survive the satisfaction
and discharge of this Indenture or the earlier resignation or removal of the
Trustee and shall apply with equal force and effect to the Trustee in its
capacity as Authenticating Agent, Paying Agent or Security Registrar.


 


Section 6.8.                                   Corporate
Trustee Required; Eligibility.


 


There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, that is eligible under Section 310(a)(1)
of the Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act and that has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of at
least $50,000,000, and that is subject to supervision or examination by Federal
or state authority. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.


 


Section 6.9.                                   Resignation
and Removal; Appointment of Successor.


 


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


 


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(2)                                  The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.10 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, at the expense of the Company, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.


 


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


 


(4)                                  If
at any time:


 


(a)                                  the
Trustee shall fail to comply with the obligations imposed upon it under Section 310(b)
of the Trust Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series for at
least six months,


 


(b)                                 the
Trustee shall cease to be eligible under Section 6.8 and shall fail to
resign after written request therefor by the Company or any such Holder, or


 


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


 


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


 


(5)                                  If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of such series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.10. If, within one year after such resignation,
removal or incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.10, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 6.10, any Holder of a


 


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


 


(6)                                  The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the Holders
of Registered Securities, if any, of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issued as
Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.


 


(7)                                  In
no event shall any retiring Trustee be liable for the acts or omissions of any
successor Trustee hereunder.


 


Section 6.10.                             Acceptance
of Appointment by Successor.


 


(1)                                  Upon
the appointment hereunder of any successor Trustee with respect to all
Securities, such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to Section 10.3,
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.7.


 


(2)                                  Upon
the appointment hereunder of any successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, such successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided


 


51





















 


therein, such
retiring Trustee shall have no further responsibility for the exercise of
rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates other
than as hereinafter expressly set forth, and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or such successor Trustee, such
retiring Trustee, upon payment of its charges with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates
and subject to Section 10.3 shall duly assign, transfer and deliver to
such successor Trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject to its claim, if any, provided for in Section 6.7.


 


(3)                                  Upon
request of any Person appointed hereunder as a successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (1) or (2) of this Section, as the case may be.


 


(4)                                  No
Person shall accept its appointment hereunder as a successor Trustee unless at
the time of such acceptance such successor Person shall be qualified and
eligible under this Article.


 


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


 


Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation acquiring all or substantially all of the corporate trust
business of the Trustee shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.


 


Section 6.12.                             Appointment
of Authenticating Agent.


 


The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.


 


52





















 


Each Authenticating Agent must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2)
of the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.


 


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


 


An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer Securities,
publish notice of such appointment at least once in an Authorized Newspaper in
the place where such successor Authenticating Agent has its principal office if
such office is located outside the United States. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.


 


The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.7.


 


The provisions of Section 3.8, Section 6.4 and Section 6.5
shall be applicable to each Authenticating Agent.


 


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


 


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


 


53





















 


	
   

  	
  [TRUSTEE NAME],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    as
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Authorized
  Signatory

  



 


If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officer’s Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.


 


ARTICLE VII.


 


HOLDERS LISTS AND
REPORTS BY TRUSTEE AND COMPANY


 


Section 7.1.                                   Company
to Furnish Trustee Names and Addresses of Holders.


 


In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee


 


(1)                                  semi-annually
with respect to Securities of each series not later than May 1 and November 1
of the year or upon such other dates as are set forth in or pursuant to the
Board Resolution or indenture supplemental hereto authorizing such series, a
list, in each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and


 


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


 


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


 


Section 7.2.                                   Preservation
of Information; Communications to Holders.


 


The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.


 


Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312(c)
of


 


54





















 


the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 312(b) of the Trust Indenture Act.


 


Section 7.3.                                   Reports
by Trustee.


 


(1)                                  Within
60 days after September 15 of each year commencing with the first September 15
following the first issuance of Securities pursuant to Section 3.1, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief
report dated as of such September 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later
of the immediately preceding September 15 and the date of this Indenture.


 


(2)                                  The
Trustee shall transmit the reports required by Section 313(a) of the Trust
Indenture Act at the times specified therein.


 


(3)                                  Reports
pursuant to this Section shall be transmitted in the manner and to the
Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act.


 


Section 7.4.                                   Reports
by Company.


 


The Company
shall:


 


(1)                                  file
with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed
and registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;


 


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


 


(3)                                  transmit
within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.


 


55





















 


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 rely
exclusively on Officers’ Certificates), other than with respect to Section 6.2.


 


ARTICLE VIII.


 


CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES


 


Section 8.1.                                   Company
May Consolidate, Etc., Only on Certain Terms.


 


The Company shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) to consolidate or amalgamate with or merge into the Company or
convey, transfer or lease its properties and assets as an entirety or substantially
as an entirety to the Company; unless:


 


(1)                                  in
case the Company shall consolidate or amalgamate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the Person formed by such
consolidation or amalgamation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company as an entirety or substantially as an entirety shall be a
Corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia, or any other country
which is on the date of this Indenture a member of the Organization of Economic
Cooperation and Development, and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by the successor Person and delivered to the Trustee the due
and punctual payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all the Securities and the performance of
every obligation in this Indenture and the Outstanding Securities on the part
of the Company to be performed or observed and shall provide for conversion or
exchange rights in accordance with the provisions of the Securities of any
series that are convertible or exchangeable into Common Stock or other
securities;


 


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


 


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


 


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Section 8.2.                                   Successor
Person Substituted for Company.


 


Upon any consolidation or amalgamation by the Company with or merger of
the Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.1, the successor Person formed by such
consolidation or amalgamation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein; and thereafter, except in the case of a lease, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, the Securities and the Coupons.


 


ARTICLE IX.


 


SUPPLEMENTAL INDENTURES


 


Section 9.1.                                   Supplemental
Indentures without Consent of Holders.


 


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


 


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


 


(2)                                  to
add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (as shall be specified in such supplemental indenture
or indentures) or to surrender any right or power herein conferred upon the
Company;


 


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


 


(4)                                  to
establish the form or terms of Securities of any series and any Coupons
appertaining thereto as permitted by Section 2.1 and Section 3.1;


 


(5)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.10;


 


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(6)                                  to
cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons appertaining thereto
in any material respect;


 


(7)                                  to
add to, delete from or revise the conditions, limitations and restrictions on
the authorized amount, terms or purposes of issue, authentication and delivery
of Securities, as herein set forth;


 


(8)                                  to
add any additional Events of Default with respect to all or any series of
Securities (as shall be specified in such supplemental indenture);


 


(9)                                  to
supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of
Securities pursuant to Article IV, provided that any such action shall not
adversely affect the interests of any Holder of an Outstanding Security of such
series and any Coupons appertaining thereto or any other Outstanding Security
or Coupon in any material respect;


 


(10)                            to
secure the Securities;


 


(11)                            to
make provisions with respect to conversion or exchange rights of Holders of
Securities of any series;


 


(12)                            to
make provisions for, and to establish the form or terms of, the guarantee by
any Person of any or all of the obligations of the Company under this Indenture
with respect to all or any series of Securities; or


 


(13)                            to
amend or supplement any provision contained herein or in any supplemental
indenture, provided that no such amendment or supplement shall materially
adversely affect the interests of the Holders of any Securities then
Outstanding.


 


Section 9.2.                                   Supplemental
Indentures with Consent of Holders.


 


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


 


(1)                                  change
the Stated Maturity of the principal of, or any premium or installment of
interest on or any Additional Amounts with respect to, any Security, or reduce
the principal amount thereof or the rate (or modify the calculation of such
rate) of interest thereon or any Additional Amounts with respect thereto, or
any premium payable upon the redemption thereof or otherwise, or change the
obligation of the Company to pay Additional Amounts pursuant to


 


58





















 


Section 10.4
(except as contemplated by Section 8.1(1) and permitted by Section 9.1(1)),
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2 or the amount thereof provable in
bankruptcy pursuant to Section 5.4, change the redemption provisions or
adversely affect the right of repayment at the option of any Holder as
contemplated by Article XIII, or change the Place of Payment, Currency in
which the principal of, any premium or interest on, or any Additional Amounts
with respect to any Security is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in the case
of repayment at the option of the Holder, on or after the date for repayment);


 


(2)                                  reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of Section 15.4
for quorum or voting;


 


(3)                                  modify
any of the provisions of this Indenture relating to the subordination of the
Securities in respect thereof in a manner adverse to Holders of Securities, or
to Holders of Securities;


 


(4)                                  modify
any of the provisions of this Section, Section 5.13 or Section 10.6,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; or


 


(5)                                  make
any change that adversely affects the right to convert or exchange any Security
into or for Common Stock of the Company or other securities (whether or not
issued by the Company), cash or property in accordance with its terms.


 


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


 


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


 


Section 9.3.                                   Execution
of Supplemental Indentures.


 


As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture
Act) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture and an Officer’s Certificate stating that all conditions
precedent to the execution of such supplemental indenture have been fulfilled.
The Trustee may, but shall not be obligated to, enter into any such


 


59





















 


supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Section 9.4.                                   Effect
of Supplemental Indentures.


 


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


 


Section 9.5.                                   Reference
in Securities to Supplemental Indentures.


 


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


 


Section 9.6.                                   Conformity
with Trust Indenture Act.


 


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


 


Section 9.7.                                   Effect
on Senior Indebtedness.


 


No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article XVI in any manner which might
terminate or impair the subordination of the Securities of any series to Senior
Indebtedness with respect to such series without the prior written consent of
the holders of such Senior Indebtedness.


 


Section 9.8.                                   Notice
of Supplemental Indenture.


 


Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit
to the Holders of Outstanding Securities of any series affected thereby a
notice setting forth the substance of such supplemental indenture.


 


ARTICLE X.


 


COVENANTS


 


Section 10.1.                             Payment
of Principal, any Premium, Interest and Additional Amounts.


 


The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons appertaining
thereto and this Indenture. Any interest due on any Bearer Security on or
before the Maturity thereof, and any Additional Amounts payable with respect to


 


60





















 


such interest, shall be payable only upon
presentation and surrender of the Coupons appertaining thereto for such
interest as they severally mature.


 


Section 10.2.                             Maintenance
of Office or Agency.


 


The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. 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,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.


 


Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided, however,
if amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the
full amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.


 


The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation


 


61





















 


or rescission and of any change in the
location of any such other Office or Agency. Unless otherwise provided in or
pursuant to this Indenture, the Company hereby designates as the Place of
Payment for each series of Securities the Borough of Manhattan, The City of New
York, and initially appoints the Corporate Trust Office of the Trustee as the
Office or Agency of the Company in the Borough of Manhattan, The City of New
York for such purpose. The Company may subsequently appoint a different Office
or Agency in the Borough of Manhattan, The City of New York for the Securities
of any series.


 


Unless otherwise specified with respect to any Securities pursuant to Section 3.1,
if and so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one exchange rate agent.


 


Section 10.3.                             Money
for Securities Payments to Be Held in Trust.


 


If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.1
for the Securities of such series) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and shall
promptly notify the Trustee of its action or failure so to act.


 


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


 


The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:


 


(1)                                  hold
all sums held by it for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to Securities of such series
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as provided in or pursuant to
this Indenture;


 


(2)                                  give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any payment of principal, any
premium or interest on or any Additional Amounts with respect to the Securities
of such series; and


 


62





















 


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


 


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


 


Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable,
any unclaimed balance of such money then remaining will be repaid to the
Company.


 


Section 10.4.                             Additional
Amounts.


 


All payments of principal of and premium, if any, interest and any
other amounts on, or in respect of, the Securities of any series or any Coupon
appertaining thereto shall be made without withholding or deduction at source
for, or on account of, any present or future taxes, fees, duties, assessments
or governmental charges of whatever nature imposed or levied by or on behalf of
a jurisdiction (a “taxing jurisdiction”) or any political subdivision or taxing
authority thereof or therein, unless such taxes, fees, duties, assessments or
governmental charges are required to be withheld or deducted by (i) the laws
(or any regulations or ruling promulgated thereunder) of a taxing jurisdiction
or any political subdivision or taxing authority thereof or therein or (ii) an
official position regarding the application, administration, interpretation or
enforcement of any such laws, regulations or rulings (including, without
limitation, a holding by a court of competent jurisdiction or by a taxing
authority in a taxing jurisdiction or any political subdivision thereof). If a
withholding or deduction at source is required, the Company shall, subject to
certain limitations and exceptions set forth below, pay to the Holder of any
such Security or any Coupon appertaining thereto such Additional Amounts as may
be necessary so that every net payment of principal, premium, if any, interest
or any other amount made to such Holder, after such withholding or deduction,
shall not be less than the amount provided for in such Security, any Coupons
appertaining thereto and this Indenture to be then due and payable;


 


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provided, however, that the Company shall not
be required to make payment of such Additional Amounts for or on account of:


 


(1)                                  any
tax, fee, duty, assessment or governmental charge of whatever nature which
would not have been imposed but for the fact that such Holder: (A) was a
resident, domiciliary or national of, or engaged in business or maintained a
permanent establishment or was physically present in, the relevant taxing
jurisdiction or any political subdivision thereof or otherwise had some
connection with the relevant taxing jurisdiction other than by reason of the
mere ownership of, or receipt of payment under, such Security; (B) presented
such Security for payment in the relevant taxing jurisdiction or any political
subdivision thereof, unless such Security could not have been presented for payment
elsewhere; or (C) presented such Security more than thirty (30) days after the
date on which the payment in respect of such Security first became due and
payable or provided for, whichever is later, except to the extent that the
Holder would have been entitled to such Additional Amounts if it had presented
such Security for payment on any day within such period of thirty (30) days;


 


(2)                                  any
estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge;


 


(3)                                  any
tax, assessment or other governmental charge that is imposed or withheld by
reason of the failure by the Holder or the beneficial owner of such Security to
comply with any reasonable request by the Company addressed to the Holder
within 90 days of such request (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner or
(B) to make any declaration or other similar claim or satisfy any information
or reporting requirement, which, in the case of (A) or (B), is required or
imposed by statute, treaty, regulation or administrative practice of the
relevant taxing jurisdiction or any political subdivision thereof as a
precondition to exemption from all or part of such tax, assessment or other governmental
charge; or


 


(4)                                  any
combination of items (1), (2) and (3);


 


nor shall Additional Amounts be paid with respect to any payment of the
principal of, or premium, if any, interest or any other amounts on, any such
Security to any Holder who is a fiduciary or partnership or other than the sole
beneficial owner of such Security to the extent such payment would be required
by the laws of the relevant taxing jurisdiction (or any political subdivision
or relevant taxing authority thereof or therein) to be included in the income
for tax purposes of a beneficiary or partner or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such Additional Amounts had it been the Holder of the Security.


 


Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium, interest or any other amounts on,
or in respect of, any Security of any series or any Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding the payment of Additional Amounts in those provisions
hereof where such express mention is not made.


 


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Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to
each date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer’s Certificate,
the Company shall furnish to the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, an Officer’s Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and premium, if any, interest or any other amounts on the
Securities of such series shall be made to Holders of Securities of such series
or the Coupons appertaining thereto without withholding for or on account of
any tax, fee, duty, assessment or other governmental charge described in this Section 10.4.
If any such withholding shall be required, then such Officer’s Certificate
shall specify by taxing jurisdiction the amount, if any, required to be
withheld on such payments to such Holders of Securities or Coupons, and the
Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by this Section 10.4 The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officer’s Certificate furnished pursuant to this Section 10.4.


 


Section 10.5.                             Corporate
Existence.


 


Subject to Article VIII, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, and that of each of its Subsidiaries, and their respective rights
(charter and statutory) and franchises; provided, however, that the foregoing
shall not obligate the Company or any of its Subsidiaries to preserve any such
right or franchise if the Company or any such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of its business
or the business of such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.


 


Section 10.6.                             Waiver
of Certain Covenants.


 


The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.


 


Section 10.7.                             Company
Statement as to Compliance; Notice of Certain Defaults.


 


(1)                                  The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year, commencing with the end of the fiscal year ending on the Saturday
nearest to January 31, 2005, a written statement (which need not be
contained in or accompanied by an Officer’s Certificate) signed by the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, stating that


 


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(a)                                  a
review of the activities of the Company during such year and of its performance
under this Indenture has been made under his or her supervision, and


 


(b)                                 to
the best of his or her knowledge, based on such review, (a) the Company has
complied with all the conditions and covenants imposed on it under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and status
thereof.


 


(2)                                  The
Company shall deliver to the Trustee, within five days after the occurrence
thereof, written notice of any Event of Default or any event which after notice
or lapse of time or both would become an Event of Default pursuant to clause
(4) of Section 5.1.


 


(a)                                  The
Trustee shall have no duty to monitor the Company’s compliance with the
covenants contained in this Article X other than as specifically set forth
in this Section 10.7.


 


ARTICLE XI.


 


REDEMPTION OF SECURITIES


 


Section 11.1.                             Applicability
of Article.


 


Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.


 


Section 11.2.                             Election
to Redeem; Notice to Trustee.


 


The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.


 


Section 11.3.                             Selection
by Trustee of Securities to be Redeemed.


 


If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by lot,  which selection may include the selection for
redemption of portions of the principal amount of Registered Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Registered Security of such series not
redeemed to


 


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less than the minimum denomination for a
Security of such series established herein or pursuant hereto.


 


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


 


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


 


Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock of the Company or exchanged for other securities in
part before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.


 


Section 11.4.                             Notice
of Redemption.


 


Notice of redemption shall be given in the manner provided in Section 1.6,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for redemption
as a whole or in part, or any defect in the notice to any such Holder, shall
not affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.


 


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


 


All notices of redemption shall state:


 


(1)                                  the
Redemption Date;


 


(2)                                  the
Redemption Price;


 


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


 


(4)                                  in
case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender
of such Security, the Holder of such Security will receive, without charge, a
new Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;


 


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


 


(6)                                  the
place or places where such Securities, together (in the case of Bearer
Securities) with all Coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price and
any accrued interest and Additional Amounts pertaining thereto;


 


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


 


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


 


(9)                                  if
Bearer Securities of any series are to be redeemed and no Registered Securities
of such series are to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption on the Redemption
Date pursuant to Section 3.5 or otherwise, the last date, as determined by
the Company, on which such exchanges may be made;


 


(10)                            in
the case of Securities of any series that are convertible into Common Stock of
the Company or exchangeable for other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate and the place or places where such Securities may be surrendered for
conversion or exchange; and


 


(11)                            the
CUSIP number or the Euroclear or the Cedel reference numbers of such
Securities, if any (or any other numbers used by a Depository to identify such
Securities).


 


A notice of redemption published as contemplated by Section 1.6
need not identify particular Registered Securities to be redeemed.


 


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


 


Section 11.5.                             Deposit
of Redemption Price.


 


On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to Section 11.4,
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 10.3)
an amount of money in the applicable Currency sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date,
unless otherwise specified pursuant to Section 3.1 or in the Securities of
such series) any accrued interest on and Additional Amounts with respect
thereto, all such Securities or portions thereof which are to be redeemed on
that date.


 


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Section 11.6.                             Securities
Payable on Redemption Date.


 


Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 10.2),
and provided, further, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of Section 3.7.


 


If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 10.2.


 


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


 


Section 11.7.                             Securities
Redeemed in Part.


 


Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series, containing identical terms and provisions, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the


 


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principal of the Security so surrendered. If
a Security in global form is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the U.S. Depository or other
Depository for such Security in global form as shall be specified in the
Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.


 


ARTICLE XII.


 


SINKING FUNDS


 


Section 12.1.                             Applicability
of Article.


 


The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required in or pursuant to this Indenture or any Security of such
series issued pursuant to this Indenture.


 


The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.


 


Section 12.2.                             Satisfaction
of Sinking Fund Payments with Securities.


 


The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If, as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this Section 12.2,
the principal amount of Securities of such series to be redeemed in order to
satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the


 


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Company having an unpaid principal amount
equal to the cash payment requested to be released to the Company.


 


Section 12.3.                             Redemption
of Securities for Sinking Fund.


 


Not less than seventy-five (75) days prior to each sinking fund payment
date for any series of Securities, the Company shall deliver to the Trustee an
Officer’s Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
of Securities of that series pursuant to Section 12.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so credited
and not theretofore delivered. If such Officer’s Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.6 and Section 11.7.


 


ARTICLE XIII.


 


REPAYMENT AT THE
OPTION OF HOLDERS


 


Section 13.1.                             Applicability
of Article.


 


Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9,
shall not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.


 


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ARTICLE XIV.


 


SECURITIES IN
FOREIGN CURRENCIES


 


Section 14.1.                             Applicability
of Article.


 


Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a
written notice to the Trustee.


 


ARTICLE XV.


 


MEETINGS OF
HOLDERS OF SECURITIES


 


Section 15.1.                             Purposes
for Which Meetings May Be Called.


 


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


 


Section 15.2.                             Call,
Notice and Place of Meetings.


 


(1)                                  The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 15.1, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, or, if Securities
of such series have been issued in whole or in part as Bearer Securities, in
London or in such place outside the United States as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.


 


(2)                                  In
case at any time the Company (by or pursuant to a Board Resolution) or the
Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 15.1, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after
receipt of such request (whichever shall be required pursuant to Section 1.6)
or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in the Borough


 


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of Manhattan,
The City of New York, or, if Securities of such series are to be issued as
Bearer Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in clause (1) of this
Section.


 


Section 15.3.                             Persons
Entitled to Vote at Meetings.


 


To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.


 


Section 15.4.                             Quorum;
Action.


 


The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice
need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.


 


Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section 9.2,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of such series.


 


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


 


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Section 15.5.                             Determination
of Voting Rights; Conduct and Adjournment of Meetings.


 


(1)                                  Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
of such series in regard to proof of the holding of Securities of such series
and of the appointment of proxies and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 1.4 and the appointment of
any proxy shall be proved in the manner specified in Section 1.4 or by
having the signature of the person executing the proxy witnessed or guaranteed
by any trust company, bank or banker authorized by Section 1.4 to certify
to the holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 1.4 or other proof.


 


(2)                                  The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders
of Securities as provided in Section 15.2(2), in which case the Company or
the Holders of Securities of the series calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting.


 


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


 


(4)                                  Any
meeting of Holders of Securities of any series duly called pursuant to Section 15.2
at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting; and the meeting may be held as so
adjourned without further notice.


 


Section 15.6.                             Counting
Votes and Recording Action of Meetings.


 


The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be subscribed
the signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and


 


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showing that said notice was given as
provided in Section 15.2 and, if applicable, Section 15.4. Each copy
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the Company,
and another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.


 


ARTICLE XVI.


 


SUBORDINATION
OF SECURITIES


 


Section 16.1.                             Agreement
to Subordinate.


 


The Company covenants and agrees, and each Holder of Securities issued
hereunder and under any indenture supplemental hereto or pursuant to a Board
Resolution and Officer’s Certificate (“Additional Provisions”) by such Holder’s
acceptance thereof likewise covenants and agrees, that all Securities shall be
issued subject to the provisions of this Article XVI; and each Holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.


 


The payment by the Company of the principal of, any premium and
interest on and any Additional Amounts with respect to all Securities of each
series issued hereunder and under any Additional Provisions shall, to the
extent and in the manner hereinafter set forth, be subordinate in right of
payment to the prior payment in full of all Senior Indebtedness with respect to
such series, whether outstanding at the date of this Indenture or thereafter
incurred.


 


No provision of this Article XVI shall prevent the occurrence of
any default or Event of Default hereunder.


 


Section 16.2.                             Default
on Senior Indebtedness.


 


In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other amount due on any
Senior Indebtedness with respect to the Securities of any series, or in the
event that the maturity of any Senior Indebtedness with respect to the
Securities of any series has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, any premium or
interest on, or any Additional Amounts with respect to, the Securities of such
series.


 


In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 16.2, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of such
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of such Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.


 


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Section 16.3.                             Liquidation;
Dissolution; Bankruptcy.


 


Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
with respect to the Securities of any series shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made by the Company on account of the principal of, premium or
interest on, or Additional Amounts with respect to, the Securities of such
series; and upon any such dissolution, winding-up, liquidation or
reorganization, or in any such bankruptcy, insolvency, receivership or other
proceeding, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article XVI, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Holders or by
the Trustee under this Indenture if received by them or it, directly to the
holders of such Senior Indebtedness (pro rata to such holders on the basis of
the respective amounts of such Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in full, in money or money’s worth, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders of the Securities of
such series or to the Trustee.


 


In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing shall be received by
the Trustee before all such Senior Indebtedness is paid in full, or provision
is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of such Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all such Senior Indebtedness remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.


 


For purposes of this Article XVI, the words “cash, property or
securities” shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article XVI
with respect to the Securities of the relevant series to the payment of all
Senior Indebtedness with respect to the Securities of such series that may at
the time be outstanding, provided that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another Person or the


 


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liquidation or dissolution of the Company
following the conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article XVI of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 16.3 if such other Person shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article XVI
of this Indenture. Nothing in Section 16.2 or in this Section 16.3
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.7
of this Indenture.


 


Section 16.4.                             Subrogation.


 


Subject to the payment in full of all Senior Indebtedness with respect
to the Securities of any series, the rights of the Holders of the Securities of
such series shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until the
principal of, any premium and interest on, and any Additional Amounts with
respect to, the Securities of such series shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this Article XVI,
and no payment over pursuant to the provisions of this Article 16 to or
for the benefit of the holders of such Senior Indebtedness by Holders of the
Securities of such series or the Trustee, shall, as between the Company, its
creditors other than holders of such Senior Indebtedness, and the Holders of
the Securities of such series, be deemed to be a payment by the Company to or
on account of such Senior Indebtedness. It is understood that the provisions of
this Article XVI are and are intended solely for the purposes of defining
the relative rights of the Holders of the Securities of each series, on the one
hand, and the holders of the Senior Indebtedness with respect to the Securities
of such series on the other hand.


 


Nothing contained in this Article XVI or elsewhere in this
Indenture, any Additional Provisions or in the Securities of any series is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness with respect to the Securities of such
series, and the Holders of the Securities of such series, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities of such series the principal of, any premium and interest on, and
any Additional Amounts with respect to, the Securities of such series as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders of the
Securities of such series and creditors of the Company, other than the holders
of such Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security of such series from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XVI of the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Company, as the case may be, received upon the exercise of any such
remedy.


 


Upon any payment or distribution of assets of the Company referred to
in this Article XVI, the Trustee, subject to the provisions of Article VI
of this Indenture, and the Holders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the


 


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Securities of any series, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness with respect to the Securities of such series
and other indebtedness of the Company, as the case may be, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XVI.


 


Section 16.5.                             Trustee
to Effectuate Subordination.


 


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


 


Section 16.6.                             Notice
by the Company.


 


The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities of
any series pursuant to the provisions of this Article XVI. Notwithstanding
the provisions of this Article XVI or any other provision of this
Indenture or any Additional Provisions, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of monies to or by the Trustee in respect of the Securities of any
series pursuant to the provisions of this Article XVI, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness with respect to
the Securities of such series or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of Article VI
of this Indenture, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 16.6 at least two Business Days prior
to the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of, any
premium or interest on, or any Additional Amounts with respect to, any Security
of such series), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by
it within two Business Days prior to such date.


 


The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness with respect to the Securities of any series (or a trustee on
behalf of such holder), to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution pursuant
to this Article XVI, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XVI, 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.


 


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Upon any payment or distribution of assets of the Company referred to
in this Article XVI, the Trustee and the Holders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of the
Securities of any series, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness with respect to the Securities of such series 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 XVI.


 


Section 16.7.                             Rights
of the Trustee; Holders of Senior Indebtedness.


 


The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XVI in respect of any Senior Indebtedness
with respect to the Securities of any series at any time held by it, to the
same extent as any other holder of such Senior Indebtedness, and nothing in
this Indenture or any Additional Provisions shall deprive the Trustee of any of
its rights as such holder.


 


With respect to the holders of Senior Indebtedness with respect to the
Securities of any series, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set forth in this Article XVI,
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture or any Additional
Provisions against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the
provisions of Article VI of this Indenture, the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Holders of the Securities of such series, the Company or any other
Person money or assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article XVI or otherwise.


 


Nothing in this Article XVI shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.


 


Section 16.8.                             Subordination
May Not Be Impaired.


 


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


 


Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness with respect to the Securities of any series
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of Securities of such series, without incurring
responsibility to such Holders and without impairing or releasing the
subordination provided in this Article XVI or the obligations hereunder of
the Holders of the Securities of such series to the holders of such Senior
Indebtedness, do any one or more of the


 


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following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.


 


Section 16.9.                             Rights
of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights.


 


The Trustee or any Authenticating Agent in its individual capacity
shall be entitled to all the rights set forth in this Article 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 this
Indenture shall deprive the Trustee or any Authenticating Agent of any of its
rights as such holder.


 


Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.


 


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


 


	
   

  	
  THE PEP BOYS—MANNY, MOE & JACK,

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Bernard K. McElroy

  
	
   

  	
   

  	
  Title: Vice President-Chief Accounting Officer and
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Alan G. Finn

  
	
   

  	
   

  	
  Title: Vice President