EXHIBIT 4.1(a)


 




 





TYCO ELECTRONICS GROUP S.A.,


as Issuer


 


AND


 


TYCO ELECTRONICS LTD.,


as Guarantor


 


AND


 


DEUTSCHE BANK TRUST

COMPANY AMERICAS,


as Trustee


 


INDENTURE


 


Dated as of September 25, 2007


 


 


UNSUBORDINATED DEBT SECURITIES


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE I.
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
  Section 1.01

  	
  Definitions
  of Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.
  ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  	
   

  	
  8

  
	
   

  	
  Section 2.01

  	
  Designation
  and Terms of Securities

  	
   

  	
  8

  
	
   

  	
  Section 2.02

  	
  Form of
  Securities and Trustee’s Certificate

  	
   

  	
  11

  
	
   

  	
  Section 2.03

  	
  Denominations;
  Provisions for Payment

  	
   

  	
  13

  
	
   

  	
  Section 2.04

  	
  Execution
  and Authentications

  	
   

  	
  15

  
	
   

  	
  Section 2.05

  	
  Transfer and
  Exchange

  	
   

  	
  16

  
	
   

  	
  Section 2.06

  	
  Temporary
  Securities

  	
   

  	
  23

  
	
   

  	
  Section 2.07

  	
  Mutilated,
  Destroyed, Lost or Stolen Securities

  	
   

  	
  24

  
	
   

  	
  Section 2.08

  	
  Cancellation

  	
   

  	
  24

  
	
   

  	
  Section 2.09

  	
  Benefits of
  Indenture

  	
   

  	
  25

  
	
   

  	
  Section 2.10

  	
  Authenticating
  Agent

  	
   

  	
  25

  
	
   

  	
  Section 2.11

  	
  Global
  Securities

  	
   

  	
  25

  
	
   

  	
  Section 2.12

  	
  CUSIP
  Numbers

  	
   

  	
  26

  
	
   

  	
  Section 2.13

  	
  Securities
  Denominated in Foreign Currencies

  	
   

  	
  26

  
	
   

  	
  Section 2.14

  	
  Wire
  Transfers

  	
   

  	
  26

  
	
   

  	
  Section 2.15

  	
  Designated
  Currency

  	
   

  	
  27

  
	
   

  	
  Section 2.16

  	
  Form of
  Guarantee

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.
  REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

  	
   

  	
  28

  
	
   

  	
  Section 3.01

  	
  Redemption

  	
   

  	
  28

  
	
   

  	
  Section 3.02

  	
  Notice of
  Redemption

  	
   

  	
  28

  
	
   

  	
  Section 3.03

  	
  Payment Upon
  Redemption

  	
   

  	
  29

  
	
   

  	
  Section 3.04

  	
  Sinking Fund

  	
   

  	
  30

  
	
   

  	
  Section 3.05

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
   

  	
  30

  
	
   

  	
  Section 3.06

  	
  Redemption
  of Securities for Sinking Fund

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.
  CERTAIN COVENANTS

  	
   

  	
  31

  
	
   

  	
  Section 4.01

  	
  Payment of
  Principal, Premium and Interest

  	
   

  	
  31

  
	
   

  	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
   

  	
  31

  
	
   

  	
  Section 4.03

  	
  Paying
  Agents

  	
   

  	
  31

  
	
   

  	
  Section 4.04

  	
  Statement by
  Officers as to Default

  	
   

  	
  32

  
	
   

  	
  Section 4.05

  	
  Appointment
  to Fill Vacancy in Office of Trustee

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.
  SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
   

  	
  32

  
	
   

  	
  Section 5.01

  	
  Company to
  Furnish Trustee Names and Addresses of Securityholders

  	
   

  	
  32

  
	
   

  	
  Section 5.02

  	
  Preservation
  of Information; Communications with Securityholders

  	
   

  	
  33

  
	
   

  	
  Section 5.03

  	
  Reports by
  the Company

  	
   

  	
  33

  



 


i

















 


	
   

  	
  Section 5.04

  	
  Reports by
  the Trustee

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
   

  	
  34

  
	
   

  	
  Section 6.01

  	
  Events of
  Default

  	
   

  	
  34

  
	
   

  	
  Section 6.02

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  37

  
	
   

  	
  Section 6.03

  	
  Application
  of Funds Collected

  	
   

  	
  38

  
	
   

  	
  Section 6.04

  	
  Limitation
  on Suits

  	
   

  	
  38

  
	
   

  	
  Section 6.05

  	
  Rights and
  Remedies Cumulative; Delay or Omission not Waiver

  	
   

  	
  39

  
	
   

  	
  Section 6.06

  	
  Control by
  Securityholders

  	
   

  	
  39

  
	
   

  	
  Section 6.07

  	
  Undertaking
  to Pay Costs

  	
   

  	
  40

  
	
   

  	
  Section 6.08

  	
  Waiver Of
  Usury, Stay Or Extension Laws

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  CONCERNING THE TRUSTEE

  	
   

  	
  41

  
	
   

  	
  Section 7.01

  	
  Certain Duties
  and Responsibilities of Trustee

  	
   

  	
  41

  
	
   

  	
  Section 7.02

  	
  Certain
  Rights of Trustee

  	
   

  	
  42

  
	
   

  	
  Section 7.03

  	
  Trustee not
  Responsible for Recitals or Issuance of Securities

  	
   

  	
  43

  
	
   

  	
  Section 7.04

  	
  May Hold
  Securities

  	
   

  	
  43

  
	
   

  	
  Section 7.05

  	
  Funds Held
  in Trust

  	
   

  	
  43

  
	
   

  	
  Section 7.06

  	
  Compensation
  and Reimbursement

  	
   

  	
  44

  
	
   

  	
  Section 7.07

  	
  Reliance on
  Officer’s Certificate

  	
   

  	
  44

  
	
   

  	
  Section 7.08

  	
  Disqualification;
  Conflicting Interests

  	
   

  	
  44

  
	
   

  	
  Section 7.09

  	
  Corporate
  Trustee Required; Eligibility

  	
   

  	
  45

  
	
   

  	
  Section 7.10

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  	
  45

  
	
   

  	
  Section 7.11

  	
  Acceptance
  of Appointment By Successor

  	
   

  	
  46

  
	
   

  	
  Section 7.12

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  	
  47

  
	
   

  	
  Section 7.13

  	
  Preferential
  Collection of Claims Against the Company

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII. CONCERNING THE SECURITYHOLDERS

  	
   

  	
  48

  
	
   

  	
  Section 8.01

  	
  Evidence of
  Action by Securityholders

  	
   

  	
  48

  
	
   

  	
  Section 8.02

  	
  Proof of
  Execution by Securityholders

  	
   

  	
  48

  
	
   

  	
  Section 8.03

  	
  Who May be
  Deemed Owners

  	
   

  	
  49

  
	
   

  	
  Section 8.04

  	
  Certain
  Securities Owned by Company Disregarded

  	
   

  	
  49

  
	
   

  	
  Section 8.05

  	
  Actions
  Binding on Future Securityholders

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.
  SUPPLEMENTAL INDENTURES

  	
   

  	
  50

  
	
   

  	
  Section 9.01

  	
  Supplemental
  Indentures Without the Consent of Securityholders

  	
   

  	
  50

  
	
   

  	
  Section 9.02

  	
  Supplemental
  Indentures with Consent of Securityholders

  	
   

  	
  51

  
	
   

  	
  Section 9.03

  	
  Effect of
  Supplemental Indentures

  	
   

  	
  52

  
	
   

  	
  Section 9.04

  	
  Securities
  Affected by Supplemental Indentures

  	
   

  	
  53

  
	
   

  	
  Section 9.05

  	
  Execution of
  Supplemental Indentures

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.
  SUCCESSOR

  	
   

  	
  53

  
	
   

  	
  Section
  10.01

  	
  Consolidation,
  Merger and Sale of Assets

  	
   

  	
  53

  
	
   

  	
  Section
  10.02

  	
  Successor
  Person Substituted

  	
   

  	
  54

  



 


ii

















 


	
  ARTICLE XI.
  SATISFACTION AND DISCHARGE

  	
   

  	
  54

  
	
   

  	
  Section
  11.01

  	
  Applicability
  of Article

  	
   

  	
  54

  
	
   

  	
  Section
  11.02

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  	
  55

  
	
   

  	
  Section
  11.03

  	
  Defeasance
  and Discharge of Obligations; Covenant Defeasance

  	
   

  	
  55

  
	
   

  	
  Section
  11.04

  	
  Deposited
  Funds to be Held in Trust

  	
   

  	
  57

  
	
   

  	
  Section
  11.05

  	
  Payment of
  Funds Held by Paying Agents

  	
   

  	
  57

  
	
   

  	
  Section
  11.06

  	
  Repayment to
  Parent or the Company

  	
   

  	
  58

  
	
   

  	
  Section
  11.07

  	
  Reinstatement

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII.
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  	
  58

  
	
   

  	
  Section
  12.01

  	
  No Recourse

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII. MISCELLANEOUS PROVISIONS

  	
   

  	
  59

  
	
   

  	
  Section
  13.01

  	
  Effect on
  Successors and Assigns

  	
   

  	
  59

  
	
   

  	
  Section
  13.02

  	
  Actions by
  Successor

  	
   

  	
  59

  
	
   

  	
  Section
  13.03

  	
  Notices

  	
   

  	
  59

  
	
   

  	
  Section
  13.04

  	
  Governing
  Law

  	
   

  	
  61

  
	
   

  	
  Section
  13.05

  	
  Treatment of
  Securities as Debt

  	
   

  	
  61

  
	
   

  	
  Section
  13.06

  	
  Compliance
  Certificates and Opinions

  	
   

  	
  61

  
	
   

  	
  Section
  13.07

  	
  Payments on
  Business Days

  	
   

  	
  62

  
	
   

  	
  Section
  13.08

  	
  Conflict
  with Trust Indenture Act

  	
   

  	
  62

  
	
   

  	
  Section
  13.09

  	
  Counterparts

  	
   

  	
  62

  
	
   

  	
  Section
  13.10

  	
  Separability

  	
   

  	
  62

  
	
   

  	
  Section
  13.11

  	
  No Adverse
  Interpretation of Other Agreements

  	
   

  	
  62

  
	
   

  	
  Section
  13.12

  	
  Table of
  Contents, Headings, Etc.

  	
   

  	
  63

  
	
   

  	
  Section
  13.13

  	
  Consent to
  Jurisdiction and Service of Process

  	
   

  	
  63

  
	
   

  	
  Section
  13.14

  	
  Waiver of
  Jury Trial

  	
   

  	
  64

  
	
   

  	
  Section
  13.15

  	
  USA Patriot
  Act

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV.
  ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS

  	
   

  	
  64

  
	
   

  	
  Section
  14.01

  	
  Redemption
  Upon Changes in Withholding Taxes

  	
   

  	
  64

  
	
   

  	
  Section
  14.02

  	
  Payment of
  Additional Amounts

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV.
  GUARANTEES

  	
   

  	
  68

  
	
   

  	
  Section
  15.01

  	
  Guarantee

  	
   

  	
  68

  
	
   

  	
  Section
  15.02

  	
  Execution
  and Delivery of Guarantee

  	
   

  	
  69

  
	
   

  	
  Section
  15.03

  	
  Release of
  Guarantee

  	
   

  	
  69

  



 


iii

















 


Cross Reference Table*


 


	
  Section of

  Trust Indenture Act

  of 1939, as amended

  	
   

  	
  Section of

  Indenture

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  7.09

  	
   

  
	
  310(b)

  	
   

  	
  7.08

  	
   

  
	
   

  	
   

  	
  7.10

  	
   

  
	
  310(c)

  	
   

  	
  Inapplicable

  	
   

  
	
  311(a)

  	
   

  	
  7.13

  	
   

  
	
  311(b)

  	
   

  	
  7.13

  	
   

  
	
  311(c)

  	
   

  	
  Inapplicable

  	
   

  
	
  312(a)

  	
   

  	
  5.01

  	
   

  
	
   

  	
   

  	
  5.02(a)

  	
   

  
	
  312(b)

  	
   

  	
  5.02(b)

  	
   

  
	
  312(c)

  	
   

  	
  5.02(b)

  	
   

  
	
  313(a)

  	
   

  	
  5.04(a)

  	
   

  
	
  313(b)

  	
   

  	
  5.04(b)

  	
   

  
	
  313(c)

  	
   

  	
  5.04(a)

  	
   

  
	
   

  	
   

  	
  5.04(b)

  	
   

  
	
  313(d)

  	
   

  	
  5.04(b)

  	
   

  
	
  314(a)

  	
   

  	
  5.03

  	
   

  
	
  314(b)

  	
   

  	
  Inapplicable

  	
   

  
	
  314(c)

  	
   

  	
  13.06

  	
   

  
	
  314(d)

  	
   

  	
  Inapplicable

  	
   

  
	
  314(e)

  	
   

  	
  13.06

  	
   

  
	
  314(f)

  	
   

  	
  Inapplicable

  	
   

  
	
  315(a)

  	
   

  	
  7.01

  	
   

  
	
  315(b)

  	
   

  	
  5.04

  	
   

  
	
  315(c)

  	
   

  	
  7.01(a)

  	
   

  
	
  315(d)

  	
   

  	
  7.01(b)

  	
   

  
	
  315(e)

  	
   

  	
  6.07

  	
   

  
	
  316(a)

  	
   

  	
  6.06, 8.04

  	
   

  
	
  316(b)

  	
   

  	
  6.04

  	
   

  
	
  316(c)

  	
   

  	
  8.01

  	
   

  
	
  317(a)

  	
   

  	
  6.02

  	
   

  
	
  317(b)

  	
   

  	
  4.03

  	
   

  
	
  318(a)

  	
   

  	
  13.08

  	
   

  



 






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


 


iv

















 


THIS
INDENTURE is dated as of September 25, 2007 among TYCO ELECTRONICS GROUP
S.A., a Luxembourg company (the “Company”),
TYCO ELECTRONICS LTD., a Bermuda company (“Parent”),
and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (the “Trustee”).


 


RECITALS


 


A.            This Indenture provides for the issuance of
unsecured debt securities (the “Securities”),
in an unlimited aggregate principal amount to be issued from time to time in
one or more series, to be authenticated by the certificate of the Trustee, and
for the issuance of guarantees of the Securities.


 


B.            This Indenture is subject to the provisions
of the Trust Indenture Act (as defined below) that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.


 


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


 


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


 


ARTICLE I.


 


DEFINITIONS


 


Section
1.01           Definitions of Terms.


 


The terms defined in this Section 1.01 (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01 and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act or that are by reference in the Trust
Indenture Act defined in the Securities Act of 1933, as amended (the “Securities Act”) (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this instrument. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted
accounting principles” means such accounting principles as are
generally accepted in the United States at the time of any computation.


 


“144A Global Security”,
with respect to any series of Securities, means one or more Global Securities,
bearing the Private Placement Legend, that will be issued in an aggregate
amount of denominations equal in total to the outstanding principal amount of
the Securities of such series sold in global form in reliance on Rule 144A.


 

















 


“Additional Amounts” has
the meaning set forth in Section 14.02.


 


“Affiliate”, with respect
to 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 ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


“Applicable Procedures”,
with respect to any transfer or exchange of or for beneficial interests in any
Global Security for a series of Securities, means the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange at the relevant time.


 


“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of
Securities appointed with respect to all or any series of the Securities by the
Trustee pursuant to Section 2.10.


 


“Board of Directors” means
the Board of Directors of the Company or Parent, as applicable, or any duly
authorized committee of such Board of Directors.


 


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


 


“Business Day”, with
respect to any series of Securities, means any day other than Saturday, Sunday
or a day on which Federal or State banking institutions in the Borough of
Manhattan, The City of New York, or in the city where the office or agency for
payment on the Securities is maintained pursuant to Section 4.02, are
authorized or obligated by law, executive order or regulation to close.


 


“Capital Stock” of any
Person means any and all shares, interests, participations, rights in or other
equivalents (however designated) of such Person’s capital stock, other equity
interests whether now outstanding or issued after the date of this Indenture,
partnership interests (whether general or limited), any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person and
any rights (other than debt securities convertible into Capital Stock),
warrants or options exchangeable for or convertible into such Capital Stock.


 


“Clearstream” means
Clearstream Banking S.A., or its successors.


 


“Commission” means the
Securities and Exchange Commission.


 


“Company” means Tyco
Electronics Group S.A. until a successor entity shall have become such pursuant
to Article X, and thereafter “Company” shall mean such successor entity.


 


2

















 


“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate
trust business shall be principally administered, which office at the date
hereof is located at 60 Wall Street, 27th Floor, New York, NY 10005.


 


“Currency” means Dollars
or Foreign Currency.


 


“Default” means any event,
act or condition that with notice or lapse of time, or both, would constitute
an Event of Default.


 


“Defaulted Interest” has
the meaning set forth in Section 2.03.


 


“Definitive Security”
means a certificated Security registered in the name of the Securityholder
thereof and issued in accordance with Section 2.05.


 


“Depositary”, with respect
to Securities of any series which the Company shall determine will be issued in
whole or in part as a Global Security, means The Depository Trust Company (“DTC”), New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange
Act, and any other applicable U.S. or foreign statute or regulation, which, in
each case, shall be designated by the Company pursuant to Section 2.01.


 


“Designated Currency” has
the meaning set forth in Section 2.15.


 


“Distribution Compliance Period”
means the restricted period as defined in Rule 903(b)(3) under the Securities
Act.


 


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


 


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


 


“Euroclear” means
Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear System.


 


“Event of Default”, with
respect to Securities of a particular series, means any event specified in
Section 6.01, continued for the period of time, if any, therein designated.


 


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


 


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


 


3

















 


“Global Security”, with
respect to any series of Securities, means a Security executed by the Company
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture, which shall be registered
in the name of the Depositary or its nominee.


 


“Governmental Obligations”
means securities that are (i) direct obligations of the United States for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


“Guarantee” means the
unconditional and unsubordinated guarantee by Parent of the due and punctual
payment of principal of and interest on a series of Securities when and as the
same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise in accordance with the terms of
the Securities and this Indenture.


 


“herein,” “hereof” and “hereunder,” and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


“including” means including without limitation.


 


“Indenture” means this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into in
accordance with the terms hereof.


 


“Indirect Participant”
means any entity that, with respect to DTC, clears through or maintains a
direct or indirect, custodial relationship with a Participant.


 


“Institutional Accredited Investor”
means an institution that is an “accredited investor” as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, who is not also a QIB.


 


“Interest Payment Date,”
when used with respect to any installment of interest on a Security of a
particular series, means the date specified herein, in such Security or in a
Board Resolution or in an indenture supplemental hereto with respect to such
series as the fixed date on which an installment of interest with respect to
Securities of that series is due and payable.


 


“Officer” means any
managing director, the chairman or any vice chairman of the Board of Directors,
the chief executive officer, the president, the chief financial officer, any
vice president, the treasurer, any assistant treasurer, the secretary or any
assistant secretary of the Company or Parent, as the case may be.


 


4

















 


“Officer’s  Certificate” means a certificate, signed by
any managing director or by the chairman or any vice chairman of the Board of
Directors, or the chief executive officer, president, chief financial officer
or vice president or  the secretary or
any assistant secretary or the treasurer or any assistant treasurer of the
Company or Parent, as the case may be, that is delivered to the Trustee in
accordance with the terms hereof. Each such certificate shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.


 


“Opinion of Counsel” means
an opinion in writing of legal counsel, who may be an Officer or employee of or
counsel for Parent or the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.


 


“Original Issue Discount Security”
means a Security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.01.


 


“Outstanding”, when used
with reference to Securities of any series, subject to the provisions of
Section 8.04, means, as of any particular time, all Securities of such
series authenticated and delivered by the Trustee under this Indenture, except


 


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


 


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


 


(c)           Securities
in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of
Section 2.07, except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Company.


 


In determining whether the holders of the requisite principal amount of
Outstanding Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to
Section 6.01 and the principal amount of a Security denominated in one or
more currencies that shall be deemed to be Outstanding for such purposes


 


5

















 


shall be based on the Dollar Equivalent on
the date of original issuance of such Security, of the principal amount of such
Security.


 


“Parent” means Tyco
Electronics Ltd. until a successor entity shall have become such pursuant to
Article X, and thereafter “Parent” shall mean such successor entity.


 


“Participant”, with
respect to the Depositary, Euroclear or Clearstream, means a Person who has an
account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).


 


“Periodic Offering” means
an offering of Securities of a series from time to time, during which any or
all of the specific terms of the Securities, including the rate or rates of
interest, if any, thereon, the maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by
the Company or its agents upon the issuance of such Securities in accordance
with the terms of the relevant Supplemental Indenture.


 


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


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen Security.


 


“Private Placement Legend”
means the legend set forth in Section 2.02(b) to be placed on all Restricted
Securities issued under this Indenture or pursuant to a Board Resolution or an
indenture supplemental hereto with respect to a series of Securities, except
where specifically stated otherwise by the provisions of this Indenture, such
Board Resolution or such supplemental indenture.


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


 


“Regulation S Global Security”
means, with respect to any series of Securities, a Regulation S Temporary
Global Security of such series, if required by Rule 903 of Regulation S, or a
Regulation S Permanent Global Security of such series, as the case may be.


 


“Regulation S Permanent Global
Security”, with respect to any series of Securities, means one or
more permanent Global Securities, bearing the Private Placement Legend, that
will be issued in an aggregate amount of denominations equal in total to the
outstanding principal amount of the Securities of such series initially sold
or, if required by Rule 903 of Regulation S, of the Regulation S Temporary
Global Security of such series upon expiration of the Distribution Compliance
Period with respect to such series, as the case may be.


 


“Regulation S Temporary Global
Security”, with respect to any series of Securities, means one or
more temporary Global Securities, bearing the Private Placement Legend, and the
Regulation S Temporary Global Security Legend issued in an aggregate amount of


 


6

















 


denominations equal in total to the
outstanding principal amount of the Securities of such series initially sold,
if required by Rule 903 of Regulation S.


 


“Regulation S Temporary Global
Security Legend” means the legend set forth in Section 2.02(d),
which is required to be placed on all Regulation S Temporary Global Securities
issued under this Indenture.


 


“Regulation S” means
Regulation S promulgated under the Securities Act, as it may be amended from
time to time, and any successor provision thereto.


 


“Responsible Officer”
means any vice president, any trust officer, any assistant trust officer, any
assistant vice president, any assistant treasurer, or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.


 


“Restricted Definitive Security”,
with respect to any series of Securities, means one or more Definitive
Securities of such series bearing the Private Placement Legend issued under
this Indenture.


 


“Restricted Global Security”,
with respect to any series of Securities, means one or more Global Securities
of such series bearing the Private Placement Legend, issued under this
Indenture.


 


“Restricted Security”,
with respect to any series of Securities, means a Security of such series,
unless or until it has been (i) effectively registered under the Securities Act
and disposed of in accordance with a registration statement with respect to such
series or (ii) distributed to the public pursuant to Rule 144 under the
Securities Act (or any similar provision then in force).


 


“Rule 144A” means Rule
144A promulgated under the Securities Act, as it may be amended from time to
time, and any successor provision thereto.


 


“Securities” means the
securities authenticated and delivered under this Indenture.


 


“Securityholder,” “Holder,” “holder
of Securities,” “registered
holder,” or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of this Indenture.


 


“Security Register” has
the meaning set forth in Section 2.05(a).


 


“Security Registrar” has
the meaning set forth in Section 2.05(a).


 


“Stated Maturity”, with
respect to any Security, means the date specified in such security as the fixed
date on which the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the option of the
holder thereof upon the


 


7

















 


happening of any contingency beyond the
control of the issuer unless such contingency has occurred).


 


“Subsidiary”, with respect
to any Person, means any other Person of which at least a majority of the
outstanding Voting Stock at the time is owned or controlled directly or
indirectly by such Person or by one or more Subsidiaries of such Person or by
such Person and one or more Subsidiaries of such Person.


 


“Taxes” has the meaning
set forth in Section 14.02.


 


“Taxing Jurisdiction” has
the meaning set forth in Section 14.01.


 


“Trustee” means Deutsche
Bank Trust Company Americas and, subject to the provisions of Article VII,
shall include its successors and assigns. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with
respect to that series.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in effect at the date of
execution of this instrument subject to the provisions of Sections 9.01, 9.02,
and 10.01.


 


“Unrestricted Definitive Security”,
with respect to any series of Securities, means one or more Definitive Securities
representing such series of Securities that do not bear and are not required to
bear the Private Placement Legend, issued under this Indenture.


 


“Unrestricted Global Security”,
with respect to any series of Securities, means one or more permanent Global
Securities representing such series of Securities that do not bear and are not
required to bear the Private Placement Legend, issued under this Indenture.


 


“Unrestricted Securities”,
with respect to any series of Securities, means a Security (i) effectively
registered under the Securities Act and disposed of in accordance with a
registration statement with respect to such series or (ii) distributed to the
public pursuant to Rule 144 under the Securities Act (or any similar provision
then in force).


 


“Voting Stock” of a Person
means Capital Stock of such Person of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
such Person, irrespective of whether or not at the time Capital Stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency.


 


ARTICLE II.


 


ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES


 


Section
2.01           Designation and Terms of Securities.


 


(a)           The
aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series


 


8

















 


up to the aggregate principal amount of
Securities of that series from time to time authorized by or pursuant to a
Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Securities of any series,
there shall be established in or pursuant to a Board Resolution of the Company,
and set forth in an Officer’s Certificate of the Company, or established in one
or more indentures supplemental hereto, with respect to the Securities of the
series:


 


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


 


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


 


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


 


(4)           the
rate or rates (which may be fixed or variable) at which the Securities of the
series shall bear interest or the manner of calculation of such rate or rates,
if any (including any procedures to vary or reset such rate or rates), and the
basis upon which interest will be calculated if other than that of a 360 day
year of twelve 30-day months;


 


(5)           the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such
Interest Payment Dates, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates;


 


(6)           any
trustees, authenticating agents or paying agents with respect to such series,
if different from those set forth in this Indenture;


 


(7)           the
right, if any, to extend the interest payment periods or defer the payment of
interest and the duration of such extension or deferral;


 


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


 


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


 


(10)         the
form of the Securities of the series including the form of the Trustee’s
certificate of authentication for such series;


 


9

















 


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


 


(12)         the
Currency or Currencies in which payment of the principal of, premium, if any,
and interest on, Securities of the series shall be payable;


 


(13)         if
the principal amount payable at the Stated Maturity of Securities of the series
will not be determinable as of any one or more dates prior to such Stated
Maturity, the amount which will be deemed to be such principal amount as of any
such date for any purpose, including the principal amount thereof which will be
due and payable upon any maturity other than the Stated Maturity or which will
be deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined);


 


(14)         the
terms of any repurchase or remarketing rights;


 


(15)         if
the Securities of the series shall be issued in whole or in part in the form of
a Global Security or Securities, the type of Global Security to be issued; the
terms and conditions, if different from those contained in this Indenture, upon
which such Global Security or Securities may be exchanged in whole or in part
for other individual Securities in definitive registered form; the Depositary
for such Global Security or Securities; and the form of any legend or legends
to be borne by any such Global Security or Securities in addition to or in lieu
of the legends referred to in Section 2.02;


 


(16)         whether
the Securities of the series will be convertible into or exchangeable for other
Securities, common shares or other securities of any kind of the Company or
another obligor, and, if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, including the initial
conversion or exchange price or rate or the method of calculation, how and when
the conversion price or exchange ratio may be adjusted, whether conversion or
exchange is mandatory, at the option of the holder or at the Company’s option,
the conversion or exchange period, and any other provision in addition to or in
lieu of those described herein;


 


(17)         if
other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;


 


(18)         any
additional restrictive covenants or Events of Default that will apply to the
Securities of the series, or any changes to the restrictive covenants set forth
in Article IV or the Events of Default set forth in Section 6.01 that
will apply to the Securities of the series, which may consist of establishing different
terms or provisions from those set forth in Article IV or
Section 6.01 or eliminating any such restrictive covenant or Event of
Default with respect to the Securities of the series;


 


(19)         any
provisions granting special rights to holders when a specified event occurs;


 


(20)         if
the amount of principal or any premium or interest on Securities of a series
may be determined with reference to an index or pursuant to a formula, the
manner in


 


10

















 


which such amounts will
be determined;


 


(21)         any
special tax implications of the Securities, including provisions for original
issue discount securities, if offered;


 


(22)         whether
and upon what terms Securities of a series may be defeased if different from
the provisions set forth in this Indenture;


 


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


 


(24)         whether
the Securities of the series will be issued as Unrestricted Securities or Restricted
Securities, and, if issued as Restricted Securities, the rule or regulation
promulgated under the Securities Act in reliance on which they will be sold; and


 


(25)         any
and all additional, eliminated or changed terms that shall apply to the Securities
of the series, including any terms that may be required by or advisable under
United States laws or regulations (including the Securities Act and the rules
and regulations promulgated thereunder) or advisable in connection with the
marketing of Securities of that series.


 


(b)           All Securities of any one series shall be
substantially identical, except that Securities of any particular series may be
issued at various times, in different denominations, with different currency of
payments due thereunder, with different dates on which the principal or any
installment of principal is payable, with different rates of interest, if any,
or different methods by which rates of interest may be determined, with
different dates from which such interest may accrue or on which such interest
may be payable, and with different redemption dates, and except as may
otherwise be provided in or pursuant to any such Board Resolution or in any
supplemental indenture. If any of the terms of the series are
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officer’s Certificate of the Company setting
forth the terms of the series. The
terms of the Securities of any series may provide that such Securities shall be
authenticated and delivered by the Trustee upon original issuance from time to
time upon written order of persons designated in such Board Resolution or
supplemental indenture and that such persons are authorized to determine,
consistent with such Board Resolution or supplemental indenture, such terms and
conditions of the Securities of such series.


 


Section
2.02           Form of Securities and Trustee’s Certificate.


 


(a)           The
Securities of any series and the Trustee’s certificate of authentication to be
borne by such Securities shall be substantially of the tenor as set forth in an
indenture supplemental hereto or as provided in a Board Resolution of the
Company and as set forth in an Officer’s Certificate of the Company and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, any Board Resolution or any indenture supplemental hereto, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any


 


11

















 


rule or regulation of any stock exchange on
which Securities of that series may be listed, or to conform to usage.


 


(b)           Each
Restricted Security (and all Restricted Securities issued in exchange therefor
or substitution thereof) shall bear a Private Placement Legend in substantially
the following form:


 


“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE “SECURITIES ACT”). THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”


 


(c)           To
the extent required by the Depositary for particular series of Securities, each
Global Security of such series shall bear legends in substantially the
following forms:


 


“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE
EXCHANGED


 


12

















 


IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.05(C) OF THE INDENTURE,
(III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”


 


“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”


 


(d)           To
the extent required by the Depositary, each Regulation S Temporary Global
Security shall bear a legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY SECURITY SHALL
BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH
HOLDER HOLDS THIS SECURITY. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT
INTEREST FROM ACCRUING ON THIS SECURITY.”


 


Section
2.03           Denominations; Provisions for Payment.


 


The Securities shall be issuable as registered Securities and in the
denominations of $1,000 or any integral multiple thereof, subject to Section
2.01(a)(11). The Securities of a particular series shall bear interest payable
on the dates and at the rate specified as provided in Section 2.01 with respect
to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be


 


13

















 


payable in Dollars except as otherwise
specified pursuant to Section 2.01(a)(12), at the office or agency of the
Company maintained for that purpose pursuant to Section 4.02. Each Security
shall be dated the date of its authentication. Unless otherwise specified with
respect to a series of Securities in accordance with the provisions of Section
2.01(a)(4), interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.


 


The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to
any Interest Payment Date and prior to such Interest Payment Date, interest on
such Security will be paid upon presentation and surrender of such Security as
provided in Section 3.03.


 


Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of any
Securities pursuant to Section 2.01, the term “regular record date” as used in
this Section 2.03 with respect to a series of Securities shall mean a date
15 days immediately preceding any Interest Payment Date. Subject to the
provisions of this Section 2.03, each Security of a series delivered under
this Indenture upon registration of transfer or in exchange for or in lieu of
any other Security of such series shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.


 


Unless otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 2.01, any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Security (“Defaulted
Interest”) shall forthwith cease to be payable to the registered
holder on the relevant regular record date, and such Defaulted Interest shall
be paid by the Company, at its election, as provided in clause (1) or clause
(2) below.


 


(1)           The
Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner:  the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each such
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee funds in an amount equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such funds when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as provided in this
clause (1). Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15 nor less
than ten days prior to the date of the proposed payment and not less than ten
days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee promptly shall notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be
mailed, first class


 


14

















 


postage prepaid, to each Securityholder at
his or her address as it appears in the Security Register, not less than ten
days prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on
such special record date and shall not be payable pursuant to the following
clause (2).


 


(2)           The
Company may make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be
required by such exchange.


 


Section
2.04           Execution and Authentications.


 


The Securities shall be signed on behalf of the Company by any member
of the Board of Directors of the Company or by both (a) its president, chief
financial officer or vice president and (b) its secretary, any assistant
secretary, its treasurer or any assistant treasurer. Signatures may be in the
form of a manual or facsimile signature. In the case of Definitive Securities
of any series, such signatures may be imprinted or otherwise reproduced on such
Securities. The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.


 


A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company, with the form of Guarantee thereon executed
by Parent, to the Trustee for authentication, together with a written order of
the Company for the authentication and delivery of such Securities, signed by
an Officer (an “Authentication Order”),
and the Trustee in accordance with such written order shall authenticate and
deliver such Securities.


 


Notwithstanding the provisions of Section 2.01 and the preceding
paragraph, in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time
in  accordance with instructions or such
other procedures acceptable to the Trustee as may be specified by or pursuant
to a supplemental indenture or the written order of the Company delivered to
the Trustee prior to the time of the first authentication of Securities of such
series. With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of
any of such Securities, the forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the written order of the
Company, Opinion of Counsel, Officer’s Certificate and other documents
delivered pursuant to this Section 2.04 at or prior to the time of the
first authentication of Securities of such series unless and until such written
order, Opinion of Counsel, Officer’s Certificate or other documents have been
superseded or revoked or expire by their terms.


 


15

















 


Section
2.05           Transfer and Exchange.


 


(a)           Registration
of Transfer and Exchange. The Company shall keep, or cause to be kept, at
its office or agency designated for such purpose as provided in Section 4.02, a
register or registers (the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as
provided in this Article II and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and the transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security
Registrar”). If the Company fails to appoint or maintain another
entity as Security Registrar, the Trustee shall act as such. The Company or any
of its Subsidiaries may act as Security Registrar.


 


To permit registrations of transfers and exchanges, the Company shall
execute a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount and in authorized denominations,
and Parent shall execute the form of Guarantee or Guarantees thereon, and the
Trustee shall authenticate and deliver such Security or Securities upon receipt
of an Authentication Order. The Trustee shall not be required to register the
transfer of or exchange any Security selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.


 


All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and Parent, evidencing
the same indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange. Prior
to such due presentment for the registration of a transfer of any Security, the
Trustee, the Company, any paying agent and the Security Registrar may deem and
treat the Person in whose name any Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, the Company, the paying agent or the Security Registrar shall be
affected by notice to the contrary.


 


All certifications, certificates and opinions of counsel required to be
submitted to the Trustee pursuant to this Section 2.05 to effect a registration
of transfer or exchange may be submitted by facsimile.


 


(b)           Service
Charge. No service charge shall be payable by a holder of a beneficial
interest in a Global Security or by a Holder of a Definitive Security for any
exchange or registration of transfer of Securities, or for any issue of new
Securities in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto (other than any such taxes or other governmental
charge payable upon exchange or registration of transfer pursuant to Sections
2.06, 3.03(b) and 9.04).


 


(c)           Transfer
and Exchange of Global Securities. A Global Security may not be transferred
except as a whole by the Depositary for a series of the Securities to a nominee
of such Depositary, by a nominee of such Depositary to such Depositary or to
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for a series of the Securities or a nominee of such
successor Depositary. If at any time the Depositary for a


 


16

















 


series of the Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such series or if
at any time the Depositary for such series shall no longer be registered or in
good standing under the Exchange Act or other applicable statute or regulation,
and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, the provisions of Section 2.11 shall no longer be applicable to the
Securities of such series. In addition, the Company may at any time determine
that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of Section 2.11 shall no longer apply to the
Securities of such series. In either such event the Company will execute the
Definitive Securities of such series, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series, and Parent will execute the form of Guarantees thereon, and
subject to this Section 2.05 the Trustee, upon receipt of an Officer’s
Certificate evidencing such determination by the Company, if applicable, will
authenticate and deliver such Definitive Securities in exchange for such Global
Security. Upon the exchange of the Global Security of such series for such
Definitive Securities of such series, the Global Security shall be canceled by
the Trustee. Such Definitive Securities shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its Participants or Indirect Participants or otherwise, shall in writing instruct
the Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so registered.


 


Except as provided in Sections 2.06 and 2.07, a Global Security may not
be exchanged for another Security other than as provided in this Section
2.05(c); however, beneficial interests in a Global Security may be transferred
and exchanged as provided in Section 2.05(d) or (e). The provisions of this
Section 2.05(c) are subject to Section 2.11.


 


(d)                               Transfer
and Exchange of Beneficial Interests in the Global Securities. The transfer
and exchange of beneficial interests in the Global Securities of a series shall
be effected through the Depositary, in accordance with the provisions of this
Indenture, any Board Resolution and any one or more indentures supplemental
hereto, and the Applicable Procedures. Beneficial interests in the Restricted
Global Securities of a series shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Securities also shall
require compliance with either subparagraph (1) or (2) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:


 


(1)           Transfer
of Beneficial Interests in the Same Global Security. Beneficial interests
in any Restricted Global Security of a series may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same
Restricted Global Security in accordance with the transfer restrictions set
forth in the Private Placement Legend. Beneficial interests in any Unrestricted
Global Security of a series may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security
of such series. Subject to Section 2.05(e)(4), no written orders or
instructions shall be required to be delivered to the Security Registrar to
effect the transfers described in this Section 2.05(d)(1).


 


17














 


(2)           All
Other Transfers and Exchanges of Beneficial Interests in Global Securities.
In connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.05(d)(1) above, the transferor of such beneficial
interest must deliver to the Security Registrar, as applicable, either:


 


(A)(1) an order from a Participant or an Indirect Participant given to
the Depositary in accordance with the relevant Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Security of such series in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the relevant Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or


 


(B)(1) an order from a Participant or an Indirect Participant given to
the Depositary in accordance with the relevant Applicable Procedures directing
the Depositary to cause to be issued a Definitive Security of such series in an
amount equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Security Registrar containing
information regarding the Person in whose name such Definitive Security shall
be registered to effect the transfer or exchange referred to in (B)(1) above;


 


provided that in no event shall Definitive
Securities of a series be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Security of such series prior to
(y) the expiration of the relevant Distribution Compliance Period and (z) the
receipt by the Security Registrar of any certificates identified by the Company
or its counsel to be required pursuant to Rule 903 and Rule 904 under the
Securities Act. Upon satisfaction of all the requirements for transfer and
exchange of beneficial interests in Global Securities of a series contained in
this Indenture, any Board Resolution, or one or more indentures supplemental
hereto and the Securities of such series or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Security or Securities of such series pursuant to Section 2.05(h).


 


(3)           Transfer
of Beneficial Interests to Another Restricted Global Security. A beneficial
interest in any Restricted Global Security of a series may be transferred to a
Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Security of the same series if the transfer complies
with the requirements of Section 2.05(d)(2) and the Security Registrar receives
a completed certificate in the form of Exhibit A.


 


(4)           Transfer
and Exchange of Beneficial Interests in a Restricted Global Security for
Beneficial Interests in an Unrestricted Global Security. A beneficial
interest in any Restricted Global Security of any series may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global Security
of such series or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Security of such series
if the exchange or transfer complies with the requirements of Section
2.05(d)(2) above and the Security Registrar receives a completed certificate
from such holder in the form of Exhibit A or Exhibit B, as applicable, and an
opinion of


 


18

















 


counsel in form, and from legal counsel,
reasonably acceptable to the Security Registrar and the Company to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.


 


If any such transfer is effected at a time when an Unrestricted Global
Security of such series has not yet been issued, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.04, the
Trustee shall authenticate one or more Unrestricted Global Securities of such
series in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests so transferred. Beneficial interests in an Unrestricted
Global Security of a series cannot be exchanged for, or transferred to Persons
who take delivery thereof in the form of, a beneficial interest in a Restricted
Global Security of such series.


 


(e)           Transfer
or Exchange of Beneficial Interests for Definitive Securities.


 


(1)           Beneficial
Interests in Restricted Global Securities to Restricted Definitive Securities.
If any holder of a beneficial interest in a Restricted Global Security of a
series proposes to exchange such beneficial interest for a Restricted
Definitive Security of such series or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Security of such series, then, upon receipt by the Security Registrar of a
completed certificate from such holder in the form of Exhibit A or Exhibit B, as
applicable, and certificates and opinions of counsel, if applicable, the Trustee
shall cause the aggregate principal amount of the applicable Restricted Global
Security of such series to be reduced accordingly pursuant to Section 2.05(h),
and the Company shall execute a Restricted Definitive Security of such series
in the appropriate principal amount, and Parent shall execute the form of
Guarantee thereon, and, upon receipt of an Authentication Order pursuant to
Section 2.04, the Trustee shall authenticate and deliver to the Person
designated in the instructions such Restricted Definitive Security. Any
Restricted Definitive Security of such series issued in exchange for a
beneficial interest in a Restricted Global Security of such series pursuant to
this Section 2.05(e) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Security Registrar through instructions from the
Depositary for such series and the Participant or Indirect Participant. The
Trustee shall deliver such Restricted Definitive Securities of such series to
the Persons in whose names such Securities are so registered. Any Restricted
Definitive Security of such series issued in exchange for a beneficial interest
in a Restricted Global Security of such series pursuant to this Section
2.05(e)(1) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.


 


(2)           Beneficial
Interests in Restricted Global Securities to Unrestricted Definitive Securities.
A holder of a beneficial interest in a Restricted Global Security of a series
may exchange such beneficial interest for an Unrestricted Definitive Security
of such series or may transfer such beneficial interest to a Person who takes
delivery thereof


 


19

















 


in the form of an Unrestricted Definitive
Security of such series only if the Security Registrar receives a completed
certificate from such holder in the form of Exhibit A or Exhibit B, as
applicable, and an opinion of counsel in form, and from legal counsel,
reasonably acceptable to the Security Registrar and the Company to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.


 


(3)           Beneficial
Interests in Unrestricted Global Securities to Unrestricted Definitive
Securities. If any holder of a beneficial interest in an Unrestricted
Global Security of a series proposes to exchange such beneficial interest for
an Unrestricted Definitive Security of such series or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security of such series, then, upon satisfaction of the
conditions set forth in Section 2.05(d)(2), the Trustee shall cause the
aggregate principal amount of the applicable Unrestricted Global Security of
such series to be reduced accordingly pursuant to Section 2.05(h), and the
Company shall execute an Unrestricted Definitive Security of such series in the
appropriate principal amount, and Parent shall execute the form of Guarantee
thereon, and, upon receipt of an Authentication Order in accordance with
Section 2.04, the Trustee shall authenticate and deliver to the Person
designated in the instructions such Unrestricted Definitive Security. Any
Unrestricted Definitive Security issued in exchange for a beneficial interest
pursuant to this Section 2.05(e)(3) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Security Registrar through instructions
from the Depositary for such series and the Participant or Indirect Participant.
The Trustee shall deliver such Unrestricted Definitive Securities to the
Persons in whose names such Securities are so registered. Any Unrestricted
Definitive Security issued in exchange for a beneficial interest pursuant to
this Section 2.05(e)(3) shall not bear the Private Placement Legend.


 


(4)           Transfer
or Exchange of Regulation S Temporary Global Securities. Notwithstanding
the other provisions of this Section 2.05, a beneficial interest in the
Regulation S Temporary Global Security of a series may not be (A) exchanged for
a Definitive Security of such series prior to (y) the expiration of the
Distribution Compliance Period with respect to such series (unless such exchange
is effected by the Company, does not require an investment decision on the part
of the Holder thereof and does not violate the provisions of Regulation S) and
(z) the receipt by the Security Registrar of any certificates identified by the
Company or its counsel to be required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act or (B) transferred to a U.S. person (as such term is defined
in Regulation S) or for the account or benefit of a U.S. person (other than an
initial purchaser of such Regulation S Temporary Global Security) or a Person
who takes delivery thereof in the form of a Definitive Security of such series
prior to the events set forth in clause (A) above or unless the transfer is
pursuant to an exemption from the registration requirements of the Securities
Act other than Rule 903 or 904.


 


(f)            Transfer
and Exchange of Definitive Securities for Beneficial Interests.


 


20

















 


(1)           Restricted
Definitive Securities to Beneficial Interests in Restricted Global Securities.
If any Holder of a Restricted Definitive  Security
of a series proposes to exchange such Security for a beneficial interest in a
Restricted Global Security of such series or to transfer such Restricted
Definitive Securities of such series to a Person who takes delivery thereof in
the form of a beneficial interest in a Restricted Global Security of such
series, then, upon receipt by the Trustee of the following documentation:


 


(A) if the Holder of such Restricted Definitive Security of such series
proposes to exchange such Security for a beneficial interest in a Restricted
Global Security of such series, a completed certificate from such holder in the
form of Exhibit B; or


 


(B) if such Restricted Definitive Security is being transferred to a
QIB in accordance with Rule 144A under the Securities Act or to a non-U.S. person
in an offshore transaction in accordance with Rule 903 or 904 under the
Securities Act, a completed certificate to that effect set forth in Exhibit A,


 


the Trustee shall cancel the Restricted Definitive Security of such
series, increase or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global Security of
such series and, in the case of clause (B) above, the 144A Global Security of
such series or the Regulation S Global Security of such series as applicable.


 


(2)           Restricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities.
A Holder of a Restricted Definitive Security of a series may exchange such
Security for a beneficial interest in an Unrestricted Global Security of such
series or transfer such Restricted Definitive Security of such series to a
Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security of such series only if the Security Registrar receives a
completed certificate from such Holder in the form of Exhibit A or Exhibit B,
as applicable, and an opinion of counsel in form, and from legal counsel,
reasonably acceptable to the Security Registrar and the Company to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act. Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.05(f)(2), the Trustee shall cancel the Restricted Definitive
Securities of such series so transferred or exchanged and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global Security
of such series.


 


(3)           Unrestricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities.
A Holder of an Unrestricted Definitive Security of a series may exchange such
Security for a beneficial interest in an Unrestricted Global Security of such
series or transfer such Definitive Securities of such series to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security of such series at any time. Upon receipt of a written request
for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Security and increase or cause or be increased the
aggregate principal amount of one of the


 


21

















 


Unrestricted Global Securities of such series.
If any such exchange or transfer from a Definitive Security of a series to a
beneficial interest is effected pursuant to subparagraphs (2) or (3) of this
Section 2.05(f) at a time when an Unrestricted Global Security of such series
has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.04, the Trustee shall
authenticate one or more Unrestricted Global Securities of such series in an
aggregate principal amount equal to the principal amount of Definitive
Securities of such series so transferred.


 


(g)           Transfer
and Exchange of Definitive Securities for Definitive Securities. Upon written
request by a Holder of Definitive Securities of a series and such Holder’s
compliance with the provisions of this Section 2.05(g), the Trustee shall
register the transfer or exchange of Definitive Securities of such series
pursuant to the provisions of Section 2.05(a). In addition to the requirements
set forth in Section 2.05(a), the requesting Holder shall provide any
additional certifications, documents, and information, as applicable, required
pursuant to the following provisions of this Section 2.05(g).


 


(1)           Restricted
Definitive Securities to Restricted Definitive Securities. Any Restricted
Definitive Security of a series may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted Definitive
Security of such series if the Trustee receives a completed certificate in the
form of Exhibit A, including the certifications, certificates and opinions of
counsel required by item (3) thereof, if applicable.


 


(2)           Restricted
Definitive Securities to Unrestricted Definitive Securities. Any Restricted
Definitive Security of a series may be exchanged by the Holder thereof for an Unrestricted Definitive Security of such
series or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Security of such series if the Security
Registrar receives a completed certificate from such Holder in the form of
Exhibit A or Exhibit B, as applicable and an opinion of counsel in form, and
from legal counsel, reasonably acceptable to the Trustee and the Company to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.


 


(3)           Unrestricted
Definitive Securities to Unrestricted Definitive Securities. A Holder of
Unrestricted Definitive Securities of a series may transfer such Securities to
a Person who takes delivery thereof in the form of an Unrestricted Definitive
Security of such series in accordance with subsection 2.05(a). Upon receipt of
a request to register such a transfer, the Security Registrar shall register
the Unrestricted Definitive Securities of such series pursuant to the instructions
from the Holder thereof.


 


(h)           Cancellation
and/or Adjustment of Global Securities. At such time as all beneficial
interests in a particular Global Security of a series have been exchanged for
Definitive Securities of such series or a particular Global Security of a
series has been redeemed, repurchased or cancelled in whole and not in part,
each such Global Security of such series shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.08. At any


 


22

















 


time prior to such cancellation, if any
beneficial interest in a Global Security of such series is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security of such series or for Definitive
Securities of such series, the principal amount of Securities of such series
represented by such Global Security shall be reduced accordingly and an
endorsement may be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security of such series, such other Global Security shall be increased
accordingly and an endorsement may be made on such Global Security by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.


 


(i)            No
Exchange or Transfer. The Company shall not be required (i) to issue,
exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, (ii) to register
the transfer of or exchange any Securities of any series or portions thereof
called for redemption, nor (iii) to register the transfer of or exchange a
Security of any series between the applicable record date pursuant to Section 2.01(a)(5) and the next succeeding Interest
Payment Date.


 


Section 2.06          Temporary Securities.


 


Pending the preparation of definitive Securities of any series, the
Company may execute temporary Securities (printed, lithographed or typewritten)
of any authorized denomination, and Parent shall execute the Guarantees thereon,
and the Trustee shall authenticate and deliver such Securities. Such temporary
Securities shall be substantially in the form of the definitive Securities in
lieu of which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security of any series shall be
executed by the Company, with the form of Guarantee thereon executed by Parent,
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute,
and if applicable Parent will endorse, and will furnish definitive Securities
of such series and thereupon any or all temporary Securities of such series may
be surrendered in exchange therefor without charge to the holders, at the
office or agency of the Company maintained pursuant to Section 4.02 for the
purpose of exchanges of Securities of such series, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such temporary
Securities an equal aggregate principal amount of definitive Securities of such
series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the
Company. Until so exchanged, temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder.


 


23

















 


Section
2.07           Mutilated, Destroyed, Lost or Stolen Securities.


 


In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute a new Security of the same series, bearing a number not
contemporaneously outstanding in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen, and Parent shall execute the form of Guarantee thereon, and upon the
Company’s written request the Trustee (subject to the next succeeding sentence)
shall authenticate and deliver, such Security. In every case the applicant for
a substituted Security shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant’s Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any Officer. Upon the
issuance of any substituted Security, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Company, instead of issuing a substitute Security, may pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Security and of the ownership thereof.


 


Every
replacement Security issued pursuant to the provisions of this Section 2.07
shall constitute an additional contractual obligation of the Company whether or
not the mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


Section
2.08           Cancellation.


 


All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, if surrendered to the Company or any
paying agent, shall be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On written request of the Company at the time
of such surrender, the Trustee shall deliver to the Company canceled Securities
held by the Trustee. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.


 


24

















 


Section 2.09          Benefits of Indenture.


 


Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Securities, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Securities.


 


Section 2.10          Authenticating Agent.


 


So long as any of the Securities of any series remain Outstanding,
there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. The Authenticating Agent
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series, including Securities issued upon exchange, registration of
transfer or partial redemption thereof, 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. All references
in this Indenture to the authentication of Securities by the Trustee shall be
deemed to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately. Any Authenticating Agent may
resign at any time by giving written notice of resignation to the Trustee and
to the Company. The Trustee at any time may, and upon request by the Company
shall, terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers
and duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.


 


Section 2.11          Global Securities.


 


(a)           General.
If the Company shall establish pursuant to Section 2.01 that the Securities of
a particular series are to be issued as a Global Security, then the Company
shall execute one or more Global Securities that (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Securities of such series, (ii) shall be registered in the name
of the Depositary or its nominee and (iii) shall be delivered to the Trustee as
custodian for the Depositary or otherwise delivered pursuant to the Depositary’s
instructions, and Parent shall execute the Guarantee or Guarantees thereon, and
the Trustee in accordance with Section 2.04 shall authenticate such Global
Security or Global Securities.


 


25

















 


(b)           Euroclear
and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and the “Terms and Conditions Governing Use
of Euroclear” and the “General Terms and Conditions” and “Customer Handbook” of
Clearstream, respectively, in effect at the relevant time shall be applicable
to transfers of beneficial interests in the Regulation S Global Securities of
such series that are held by Participants through Euroclear or Clearstream.


 


Section 2.12          CUSIP Numbers.


 


The Company in issuing the Securities of a series may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Securityholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


Section 2.13          Securities Denominated in Foreign Currencies.


 


Except as otherwise specified pursuant to Section 2.01 for Securities
of any series, payment of the principal of, premium, if any, and interest on,
Securities of such series denominated in any Foreign Currency will be made in
such Foreign Currency.


 


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


 


Section 2.14          Wire Transfers.


 


Notwithstanding any other provision to the contrary in this Indenture,
the Company may make any payment required to be deposited with the Trustee on
account of principal of, premium, if any, or interest on, the Securities by any
method of wire transfer to an account designated in writing by the Trustee such
that funds are available on or before the date such payment is to be made to
the Holders of the Securities in accordance with the terms hereof.


 


26

















 


Section 2.15          Designated Currency.


 


The Company may provide pursuant to Section 2.01 for Securities of any
series that:


 


(a) the obligation, if any, of the Company to pay the principal of,
premium, if any, and interest on the Securities of any series in a Foreign
Currency or Dollars (the “Designated Currency”)
as may be specified pursuant to Section 2.01(a)(12) is of the essence
and agree that, to the fullest extent possible under applicable law, judgments
in respect of Securities of such series shall be given in the Designated
Currency;


 


(b)
the obligation of the Company to make payments in the Designated Currency of
the principal of, premium, if any, and interest on such Securities shall be
discharged, notwithstanding any payment in any other Currency (whether pursuant
to a judgment or otherwise), only to the extent of the amount in the Designated
Currency that the Securityholder receiving such payment, in accordance with
normal banking procedures, may purchase with the amount paid in such other
Currency after any premium and cost of exchange on the business day in the
country of issue of the Designated Currency or in the international banking
community immediately following the day on which such Securityholder receives
such payment;


 


(c)
if the amount in the Designated Currency that may be so purchased for any
reason falls short of the amount originally due, the Company shall pay such
additional amounts as may be necessary to compensate for such shortfall; and


 


(d)
any obligation of the Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.


 


Section 2.16          Form of Guarantee.


 


The form of Guarantee shall be set forth on the applicable series of Securities
substantially as follows:


 


GUARANTEE


 


For value received, Parent hereby absolutely, unconditionally and
irrevocably guarantees to the holder of this Security the payment of principal
of, premium, if any, and interest on, the Security upon which this Guarantee is
set forth in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of such Security, if lawful, to the holder of such Security
and the Trustee on behalf of the Holders, all in accordance with and subject to
the terms and limitations of such Security and Article XV of the Indenture. This
Guarantee will not become effective until the Trustee or Authenticating Agent
duly executes the certificate of authentication on this Security. This
Guarantee shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflict of law principles thereof.


 


27

















 


Dated:


 


	
   

  	
  TYCO ELECTRONICS LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


ARTICLE III.


 


REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


Section 3.01          Redemption.


 


The Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established for such
series pursuant to Section 2.01 or 14.01.


 


Section 3.02          Notice of Redemption.


 


(a)           If
the Company desires to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series, the Company shall, or shall instruct
the Trustee in writing to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 90
days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register (unless a
shorter period is specified in the Securities to be redeemed). Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice. In
any case, failure duly to give such notice to the holder of any Security of any
series designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with any such restriction.


 


Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to
be redeemed, and shall state that: 
(i) payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company maintained for
such purpose, or, if none, at the Corporate Trust Office of the Trustee, upon
presentation and surrender of such Securities; (ii) interest accrued to
the date fixed for redemption will be paid as specified in said notice; (iii) from
and after said date interest will cease to accrue; and (iv) the redemption
is for a sinking fund, if such is the case. If less than all the Securities of
a series are to be redeemed, the notice to the holders of Securities of that
series to be redeemed in whole or in part shall specify the particular
Securities to be so redeemed. In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state


 


28

















 


that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.


 


(b)           If
all or less than all the Securities of a series are to be redeemed, the Company
shall give the Trustee at least 45 days’ written notice (unless a shorter
period shall be satisfactory to the Trustee) in advance of the date fixed for
redemption as to the aggregate principal amount of Securities of the series to
be redeemed. If less than all the Securities are to be redeemed, the Trustee
thereupon shall select from Securities of such series Outstanding not
previously called for redemption, in accordance with a method determined by the
Company (in such manner as complies with
applicable legal and stock exchange requirements, if any) and that may provide
for the selection of a portion or portions (equal to $1,000 or any integral
multiple thereof) of the principal amount of such Securities of such series of
a denomination larger than $1,000, the Securities of such series to be redeemed.
The Trustee promptly shall notify the Company in writing of the numbers of the
Securities of such series to be redeemed, in whole or in part.


 


The Company, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by any of its Officers, may instruct the
Trustee or any paying agent to call all or any part of the Securities of a
particular series for redemption and to give notice of redemption in the manner
set forth in this Section 3.02, such notice to be in the name of the Company or
its own name, as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or any such
paying agent, the Company shall deliver or cause to be delivered to, or permit
to remain with, the Trustee or such paying agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this Section 3.02.


 


Section 3.03          Payment Upon Redemption.


 


(a)           If
the giving of notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be redeemed specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, in each case as established pursuant
to Section 2.01 or 14.01. Interest on such Securities or portions of Securities
shall cease to accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation
and surrender of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, such Securities shall be paid and
redeemed at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an Interest Payment Date, the interest installment
payable on such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.01).


 


(b)           Upon
presentation of any Security of such series that is to be redeemed in part
only, the Company shall execute a new Security of the same series and tenor of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented, and Parent shall execute the form of Guarantee
thereon, and the Trustee shall authenticate, and


 


29

















 


the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of the Company, such
Security; except that if a Global Security is so surrendered, the Company shall
execute a new Global Security of like tenor in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered, and Parent shall execute the form of Guarantee thereon, and, upon
receipt of an Officer’s Certificate requesting authentication and delivery, the
Trustee shall authenticate and deliver to the Depositary for such Global
Security, without service charge, such Global Security.


 


Section
3.04           Sinking Fund.


 


The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.


 


The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is 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 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.


 


Section
3.05           Satisfaction of Sinking Fund Payments with
Securities.


 


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


 


Section
3.06           Redemption of Securities for Sinking Fund.


 


Not less than 30 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by payment of cash in the Currency in which the
Securities of such series are denominated (except as provided pursuant to
Section 2.01), the portion thereof, if any, that is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 3.05 and
the basis for such credit. Together with such Officer’s Certificate, the
Company will deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.02 and


 


30

















 


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 3.02. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section
3.03.


 


ARTICLE IV.


 


CERTAIN COVENANTS


 


The following covenants shall apply to the Securities, except with
respect to any series of Securities for which the supplemental indenture or
resolution of the Board of Directors under which such series of Securities is
issued or in the form of Security for such series expressly provides that any
such covenant shall not apply to such series of Securities:


 


Section 4.01          Payment of Principal, Premium and Interest.


 


The Company will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest on the Securities of a series at
the time and place and in the manner provided herein and established with
respect to such Securities.


 


Section 4.02          Maintenance of Office or Agency.


 


So long as any series of the Securities remain Outstanding, the Company
will maintain for such series an office or agency where Securities of such
series may be presented or surrendered for payment, where Securities of such
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of such
series and this Indenture may be given or served. Such designation will
continue with respect to each office or agency until the Company, by written
notice signed by any Officer and delivered to the Trustee, shall designate some
other office or agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all presentations, surrenders, notices and demands. Unless otherwise
specified in accordance with Section 2.01 with respect to a series of
Securities, the Company initially designates the Corporate Trust Office of Deutsche
Bank Trust Company Americas, 60 Wall Street, 27th Floor, New York, New York
10005, acting as the Company’s agent, as the office to be maintained by it for
each such purpose.


 


Section 4.03          Paying Agents.


 


(a)           The
Company may appoint one or more paying agents, other than the Trustee, for all
or any series of the Securities. If the Company fails to appoint or maintain
another entity as paying agent, the Trustee shall act as such. Parent, the
Company or any of their Subsidiaries may act as paying agent.


 


(b)           The
Company shall require each paying agent other than the Trustee to agree in
writing that the paying agent will hold in trust for the benefit of
Securityholders or the Trustee all funds held by the paying agent for the
payment of principal, premium, if any, or interest on the


 


31

















 


Securities, and will promptly notify the
Trustee in writing of any default by the Company in making any such payment. While
any such default continues, the Trustee may require a paying agent to pay all
funds held by it to the Trustee. The Company at any time may require a paying
agent to pay all funds held by it to the Trustee. Upon payment over to the
Trustee, the paying agent (if other than Parent, the Company or any of their
Subsidiaries) shall have no further liability for the funds. If Parent, the
Company or any of their Subsidiaries acts as paying agent, it shall segregate
and hold in a separate trust fund for the benefit of the Securityholders all
funds held by it as paying agent.


 


(c)           Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold funds in
trust as provided in this Section 4.03 is subject to the provisions of Section
11.06, and (ii) the Company at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, may pay, or direct any paying agent to pay, to the Trustee all funds
held in trust by the Company or such paying agent, such funds to be held by the
Trustee upon the same terms and conditions as those upon which such funds were
held by the Company or such paying agent. Upon such payment by any paying agent
to the Trustee, such paying agent shall be released from all further liability
with respect to such funds.


 


Section 4.04          Statement by Officers as to Default.


 


So long as any of the Securities remain outstanding, the Company and
Parent will furnish to the Trustee on or before March 31 in each year a brief
certificate (which need not comply with Section 13.06) executed by the
principal executive, financial or accounting officer of each of the Company and
Parent on their respective behalf as to his or her knowledge of the Company’s
or Parent’s, as the case may be, compliance with all covenants and agreements
under this Indenture required to be complied with by the Company and Parent,
respectively (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture). Such certificate
need not include a reference to any non-compliance that has been fully cured
prior to the date as of which such certificate speaks.


 


The Company shall provide written notice to the Trustee within 30 days
of the occurrence of any Event of Default under Section 6.01.


 


Section 4.05          Appointment to Fill Vacancy in Office of Trustee.


 


The Company, whenever necessary to avoid or to fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall be at all times a Trustee hereunder.


 


ARTICLE V.


 


SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND

THE TRUSTEE


 


Section 5.01          Company to Furnish Trustee Names and Addresses of
Securityholders.


 


The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually at least seven Business Days before each Interest Payment Date
for a series of Securities (and in all


 


32

















 


events at intervals of not more than six
months) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Securities as of such
date, provided that the Company shall not be obligated to furnish or cause to
furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) at
such other times as the Trustee may require 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, in either case, no such list need be furnished for any
series for which the Trustee shall be the Security Registrar.


 


Section 5.02          Preservation of Information; Communications with
Securityholders.


 


(a)           The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities
contained in the most recent list furnished to it as provided in Section 5.01
and as to the names and addresses of holders of Securities received by the
Trustee in its capacity as Security Registrar (if acting in such capacity).


 


(b)           Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with
other Securityholders with respect to their rights under this Indenture or
under the Securities.


 


Section 5.03          Reports by the Company.


 


(a)           So
long as any Securities are outstanding, the Company shall file with the
Trustee, within 15 days after Parent files 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) that Parent may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
The Company shall be deemed to have complied with the previous sentence to the
extent that such information, documents and reports are filed with the
Commission via EDGAR (or any successor electronic delivery procedure) or posted
on Parent’s website.


 


(b)           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 Officer’s Certificates).


 


Section 5.04          Reports by the Trustee.


 


(a)           Any
Trustee’s report required under Section 313(a) of the Trust Indenture Act
shall be transmitted on or before July 15 in each year following the date
hereof, so long as any Securities are outstanding hereunder, and shall be dated
as of a date convenient to the Trustee no more than 60 nor less than 45 days
prior thereto.


 


(b)           A
copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with any stock
exchange upon which


 


33

















 


any Securities are listed and with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange or delisted therefrom.


 


ARTICLE VI.


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON

EVENT OF DEFAULT


 


Section 6.01          Events of Default.


 


(a)           Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of
the following events that has occurred and is continuing, except with respect
to any series of Securities for which the supplemental indenture or resolution
of the Board of Directors under which such series of Securities is issued or in
the form of Security for such series expressly provides that any such Event of
Default shall not apply to such series of Securities:


 


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


 


(2)           default
in the payment of all or any part of the principal of or premium, if any, on
any of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or


 


(3)           default
in the payment of any sinking fund installment as and when the same shall
become due and payable by the terms of the Securities of such series; or


 


(4)           default
in the performance, or breach, of any covenant or agreement of Parent or the
Company in respect of the Securities of such series and the related Guarantee
(other than (x) the failure to comply with any covenant or agreement contained
in Section 314(a)(1) of the Trust Indenture Act or Section 5.03(a) or (y) a
default or breach that is specifically dealt with elsewhere in this Section 6.01),
and continuance of such default or breach for a period of 90 days after the
date on which there has been given, by registered or certified mail, to Parent
and the Company by the Trustee or to Parent, 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 default or breach and requiring it to
be remedied and stating that such notice is a “Notice of Default” hereunder; or


 


(5)           the
Guarantee with respect to the Securities of such series shall for any reason
cease to be, or shall for any reason be asserted in writing by Parent or the
Company not to be, in full force and effect and enforceable in accordance with
its terms except to the extent contemplated by this Indenture and such
Guarantee; or


 


(6)           a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company or Parent in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a


 


34

















 


receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or Parent or for
any substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or


 


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


 


(8)           any
other Event of Default provided in the supplemental indenture or resolution of
the Board of Directors under which such series of Securities is issued or in
the form of Security for such series.


 


Any failure to perform, or breach of, any covenant or agreement of
Parent or the Company in respect of the Securities of such series and contained
in Section 314(a)(1) of the Trust Indenture Act or Section 5.03(a) shall not be
a default or an Event of Default. Remedies against Parent and the Company for
any such failure or breach will be limited to liquidated damages as described
in the following sentence, and Holders shall not have any right to accelerate
the maturity of the Securities of such series as a result of any such failure
or breach. Instead, if there is such a failure or breach of Parent’s or the
Company’s obligation under Section 314(a)(1) of the Trust Indenture Act or Section
5.03(a) and continuance of such failure or breach for a period of 90 days after
the date on which there has been given, by registered or certified mail, to
Parent and the Company by the Trustee or to Parent, 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 failure or breach
and requiring it to be remedied and stating that such notice is a “Notice of Reporting
Noncompliance” hereunder, the Company will pay liquidated damages to all
Holders of Securities of such series, at a rate per year equal to 0.25% of the
principal amount of such Securities from the 90th day following such
notice to and including the 150th day following such notice and at a
rate per year equal to 0.5% of the principal amount of such Securities from and
including the 151st day following such notice, until such failure or
breach is cured. Any such liquidated damages shall be payable in the same
manner and on the same dates as the stated interest payable on the Securities
of such series. In the event that the Company is required to pay such
liquidated damages, the Company shall provide a written notice to the Trustee
(and if the Trustee is not the paying agent, the paying agent) no later then
five Business Days prior to the payment date for the payment of such liquidated
damages setting forth the amount of such liquidated damages to be paid by the
Company on such payment date and directing the Trustee (or, if the Trustee is
not the paying agent, the paying agent) to make such payment to the extent it
receives funds from the Company to do so. The Trustee shall not at any time be
under any duty or responsibility to any holder of Securities to determine
whether such liquidated damages are payable, or with respect to the nature,
extent or calculation of the amount of liquidated damages owed.


 


35














 


(b)           In each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to
Parent and the Company (and to the Trustee if given by such Securityholders),
may declare the unpaid principal of all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, notwithstanding anything contained in
this Indenture or in the Securities of that series or established with respect
to that series pursuant to Section 2.01 to the contrary.


 


(c)           At any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for
the payment of the amount due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by written notice
to Parent and the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has or has caused to be
paid or deposited with the Trustee an amount sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of and premium, if any, on any and all Securities of that series that
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate expressed in the Securities of that series to the date of such payment or
deposit), and (ii) any and all Events of Default under this Indenture with
respect to such series, other than the nonpayment of principal on Securities of
that series that shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.06.


 


No
such rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.


 


(d)           In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.


 


(e)           The Trustee shall give to the Securityholders of any series, as the
names and addresses of such Holders appear on the Security Register, notice by
mail of all defaults known to the Trustee that have occurred with respect to
such series, such notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the giving of such
notice (the term “default” or “defaults” for the purposes of this Section
6.01(e) being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of,
premium, if any, or interest on any of the Securities of such series, or in the
payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers


 


36

















 


in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.


 


Section 6.02                             Collection of Indebtedness and Suits for
Enforcement by Trustee.


 


(a)           The
Company covenants that (i) in case it shall default in the payment of any
installment of interest on any of the Securities of a series, or any payment
required by any sinking or analogous fund established with respect to that
series as and when the same shall have become due and payable, and such default
shall have continued for a period of 30 days, or (ii) in case it shall default
in the payment of the principal of, or premium, if any, on any of the
Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on
all such Securities for principal, premium, if any, or interest, or both, with
interest upon the overdue principal, premium, if any, and (to the extent that
payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate expressed in the Securities of that
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.


 


(b)           If
the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the collection of the amounts so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or Parent and collect the amounts
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or Parent, wherever situated.


 


(c)           In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the
Company or Parent or its respective creditors or property, the Trustee shall
have power to intervene in such proceedings and take any action therein that
may be permitted by the court and, except as otherwise provided by law, shall
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Company under this Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any funds or other
property payable or deliverable on any such claim, and to distribute the same
in accordance with Section 6.03. Any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under Section
7.06.


 


(d)           All
rights of action and of asserting claims under this Indenture, or under any of
the terms established with respect to Securities of that series, may be
enforced by the Trustee


 


37

















 


without the possession of any of such
Securities, or the production thereof at any trial or other proceeding relative
thereto. Any such suit or proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the Securities of
such series.


 


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


 


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


 


Section
6.03                                Application of Funds Collected.


 


Any funds collected by the Trustee pursuant to this Article VI with
respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such funds on account of principal, premium, if any, or
interest, upon presentation of the Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:


 


FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;


 


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


 


THIRD: To the Company.


 


Section
6.04                                Limitation on Suits.


 


No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default;
(ii) the holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written


 


38

















 


request upon the Trustee to institute such
action, suit or proceeding in its own name as trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby; (iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding; and (v) during such 60 day period, the holders of a
majority in principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.


 


Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of, and premium, if any, and interest on such
Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder. By accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no
one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other
such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Securities of such series. For the protection and enforcement of the provisions
of this Section 6.04, each Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.


 


Section 6.05                             Rights and Remedies Cumulative; Delay or Omission
not Waiver.


 


(a)           Except
as otherwise provided in Section 2.07, all powers and remedies given by this
Article VI to the Trustee or to the Securityholders, to the extent permitted by
law, shall be deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.


 


(b)           No
delay or omission of the Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing shall impair any such right or power, or shall be construed to be a
waiver of any such default or on acquiescence therein. Subject to the provisions
of Section 6.04, every power and remedy given by this Article VI or by law to
the Trustee or the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.


 


Section 6.06                             Control by Securityholders.


 


The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with
Section 8.04, 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 such series;
provided,


 


39

















 


however, that such direction shall not be in
conflict with any rule of law or with this Indenture or be unduly prejudicial
to the rights of holders of Securities of any other series at the time
Outstanding determined in accordance with Section 8.04. Subject to the
provisions of Section 7.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith, by a Responsible
Officer or Responsible Officers of the Trustee, shall determine that the
proceeding so directed would involve the Trustee in personal liability. The holders
of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding affected thereby, determined in accordance with Section
8.04, on behalf of the holders of all of the Securities of such series may
waive any past default in the performance of any of the covenants contained
herein or established pursuant to Section 2.01 with respect to such series and
its consequences, except a default in the payment of the principal of, premium,
if any, or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any premium has been
deposited with the Trustee in accordance with Section 6.01(c). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.


 


Section
6.07                                Undertaking to Pay Costs.


 


All parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.07 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of, premium,
if any, or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.


 


Section
6.08                                Waiver Of Usury, Stay Or Extension Laws.


 


Each of Parent and the Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim 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 each of
Parent and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not, by resort to any such law, 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.


 


40

















 


ARTICLE VII.


 


CONCERNING THE TRUSTEE


 


Section 7.01                             Certain Duties and Responsibilities of Trustee.


 


(a)           In
case an Event of Default with respect to the Securities of a series has
occurred (that has not been cured or waived), the Trustee shall exercise with
respect to Securities of that series such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.


 


(b)           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:


 


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


 


(i)            the duties and
obligations of the Trustee shall with respect to the Securities of such series
be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities of such series
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and


 


(ii)           in the absence of bad
faith on the part of the Trustee, the Trustee with respect to the Securities of
such series may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that 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 computations or other facts stated
therein);


 


(2)           the
Trustee shall not be liable for any 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 in ascertaining the pertinent facts;


 


(3)           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
not less than a majority in principal amount of the Securities of any series at
the time Outstanding 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 that series; and


 


41

















 


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


 


Section 7.02                             Certain Rights of Trustee.


 


Except as otherwise provided in Section 7.01:


 


(a)           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, consent, order, approval, bond, security or
other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper party or parties.


 


(b)           Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the
name of the Company by an Officer (unless other evidence in respect thereof is
specifically prescribed herein).


 


(c)           The
Trustee may consult with counsel of its own selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon.


 


(d)           The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred therein or
thereby.


 


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


 


(f)            The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security or other papers or
documents, but the Trustee, in its discretion, may make such further inquiry
into such 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 the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.


 


(g)           The
Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any


 


42

















 


event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee.


 


(h)           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.


 


(i)            The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder.


 


(j)            The
Trustee may request that the Company deliver an Officer’s 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 Officer’s
Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


Section 7.03                             Trustee not Responsible for Recitals or Issuance
of Securities.


 


(a)           The
recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.


 


(b)           The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.


 


(c)           The
Trustee shall not be accountable for the use or application by the Company of
any of the Securities or of the proceeds of such Securities, or for the use or
application of any funds paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or for the
use or application of any funds received by any paying agent other than the
Trustee.


 


Section 7.04                             May Hold Securities.


 


The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or
Security Registrar. However, the Trustee is subject to Sections 7.09 and 7.13.


 


Section 7.05                             Funds Held in Trust.


 


Subject to the provisions of Section 11.06, all funds received by the
Trustee, until used or applied as herein provided, shall be held in trust for
the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any funds received by it hereunder except such as it
may agree with the Company to pay thereon.


 


43

















 


Section 7.06                             Compensation and Reimbursement.


 


(a)           The
Company shall pay to the Trustee, and the Trustee shall be entitled to be paid,
such compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust), as the Company and the
Trustee from time to time may agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee. Except as
otherwise expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses and disbursements incurred
or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense or disbursement as may arise from its own negligence or
bad faith. The Company and Parent shall indemnify the Trustee (and its
officers, agents, directors and employees) for, and shall hold it harmless
against, any and all loss, liability, claim, damage or expense, including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee) incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim of liability (whether asserted by the Company, any Holder or any other
Person).


 


(b)           The
obligations of the Company under this Section 7.06 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for expenses and disbursements
shall: (i) be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities; and (ii)
survive the termination of this Indenture and resignation or removal of the
Trustee.


 


Section 7.07                             Reliance on Officer’s Certificate.


 


Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed), in the
absence of negligence or bad faith on the part of the Trustee, may be deemed to
be conclusively proved and established by an Officer’s Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.


 


Section 7.08                             Disqualification; Conflicting Interests.


 


If the Trustee has or shall acquire any “conflicting interest” within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.


 


44

















 


Section 7.09                             Corporate Trustee Required; Eligibility.


 


There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 7.09 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Affiliate of
the Company, serve as Trustee. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 7.09, the Trustee
shall resign immediately in the manner and with the effect specified in Section
7.10.


 


Section 7.10                             Resignation and Removal; Appointment of Successor.


 


(a)           The
Trustee or any successor hereafter appointed may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register. Upon receiving such notice of
resignation, the Company promptly shall appoint a successor trustee with
respect to Securities of such series. If no successor trustee shall have been
so appointed and have accepted appointment within 60 days after the retiring
Trustee resigns, the retiring Trustee, at the expense of the Company, or the
Company may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.


 


(b)           In
case at any time any one of the following shall occur, the Company may remove
the Trustee with respect to all or any series of Securities and appoint a
successor trustee, or, unless the Trustee’s duty to resign is stayed as
provided herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months, on behalf of that holder and
all others similarly situated, may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee:


 


(1)           the Trustee shall fail
to comply with the provisions of Section 7.08 after written request therefor by
the Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months; or


 


(2)           the Trustee shall cease
to be eligible in accordance with the provisions of Section 7.09 and shall fail
to resign after written request therefor by the Company or by


 


45

















 


any such Securityholder;
or


 


(3)           the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, 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.


 


If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.


 


(c)           The
holders of a majority in aggregate principal amount of the Securities of any series
at the time Outstanding at any time may remove the Trustee with respect to such
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the consent of the Company.


 


(d)           Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Securities of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.


 


(e)           Any
successor trustee appointed pursuant to this Section 7.10 may be appointed with
respect to the Securities of one or more series or all of such series, and at
any time there shall be only one Trustee with respect to the Securities of any
particular series.


 


Section 7.11                             Acceptance of Appointment By Successor.


 


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


 


(b)           In
case of the appointment hereunder of a successor trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (ii) shall contain such provisions as shall be deemed necessary or


 


46

















 


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 (iii) 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 act or failure to
act on the part of any other Trustee hereunder. Upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, and such
retiring Trustee shall have no further responsibility with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture. Each
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates. On request of the Company or any
successor trustee, such retiring Trustee shall assign, transfer and deliver to
such successor trustee, to the extent contemplated by such supplemental
indenture, the property and funds held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor trustee relates.


 


(c)           Upon
request of any such successor trustee, the Company may 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 Section 7.11(a) or
(b), as the case may be.


 


(d)           No
successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this
Article VII.


 


(e)           Upon
acceptance of appointment by a successor trustee as provided in this Section
7.11, the successor trustee shall cause a notice of its succession to be
transmitted to Securityholders.


 


Section 7.12                           Merger, Conversion, Consolidation or Succession to
Business.


 


Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case 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.


 


47

















 


Section 7.13                             Preferential Collection of Claims Against the
Company.


 


The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.


 


ARTICLE VIII.


 


CONCERNING THE SECURITYHOLDERS


 


Section 8.01                             Evidence of Action by Securityholders.


 


Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series have
joined therein may be evidenced by any instrument or any number of instruments
of similar tenor executed by such holders of Securities of that series in
Person or by agent or proxy appointed in writing.


 


If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company, at its option, as evidenced by an Officer’s Certificate,
may fix in advance a record date for such series for the determination of
Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


Section 8.02                             Proof of Execution by Securityholders.


 


Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:


 


(a)           The
fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee.


 


48

















 


(b)           The
ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.


 


(c)           The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.


 


Section 8.03                             Who May be Deemed Owners.


 


Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered
upon the books of the Company as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.03) interest on such Security and
for all other purposes; and neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be affected by any notice to the
contrary.


 


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 in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.


 


Section 8.04                             Certain Securities Owned by Company Disregarded.


 


In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by Parent, the Company or any other obligor on the Securities of that
series or by an Affiliate of Parent or the Company shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities of such
series that a Responsible Officer of the Trustee knows are so owned shall be so
disregarded. The Securities so owned that have been pledged in good faith may
be regarded as Outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not an Affiliate. In
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all Securities of a particular series, if
any known by Parent or the Company to be owned or held by or for the account of
any of the above described Persons and, subject to Sections 7.01 and 7.02, the
Trustee shall be entitled to accept such Officer’s Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities of
such particular series not listed therein are Outstanding for the purpose of
any such determination.


 


49

















 


Section 8.05                             Actions Binding on Future Securityholders.


 


At any time prior to the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action, any holder
of a Security of that series that is shown by the evidence to be included in
the Securities the holders of which have consented to such action, by filing
written notice with the Trustee, and upon proof of holding as provided in
Section 8.02, may revoke such action so far as concerns such Security. Except
as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that series.


 


ARTICLE IX.


 


SUPPLEMENTAL INDENTURES


 


Section 9.01                             Supplemental Indentures Without the Consent of
Securityholders.


 


In addition to any supplemental indenture otherwise authorized by this
Indenture, Parent, the Company and the Trustee from time to time and at any
time may enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:


 


(a)           to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any
series, including making such changes as are required for this Indenture to
comply with the Trust Indenture Act, or to make such other provisions in regard
to matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors of the Company may deem necessary or desirable,
and which shall not in either case adversely affect the interests of the
Holders of the Securities in any material respect;


 


(b)           to
evidence the succession of another Person to Parent or the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of Parent or the Company, as the case may
be, pursuant to Article X;


 


(c)           to
provide for uncertificated Securities in addition to or in place of
certificated Securities;


 


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


 


50

















 


(e)           to
add any additional Events of Default for the benefit of the holders of all or
any outstanding series of Securities (and if such Events of Default are to be
applicable to less than all outstanding series, stating that such Events of
Default are expressly being included solely to be applicable to such series);


 


(f)            to
change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall not become effective with respect to any
outstanding Security of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;


 


(g)           to
secure the Securities of any series;


 


(h)           to
make any other change that does not adversely affect the rights of any
Securityholder of Outstanding Securities in any material respect;


 


(i)            to
provide for the issuance of and establish the form and terms and conditions of
the Securities of any series as provided in Section 2.01, to provide which, if
any, of the covenants of the Company shall apply to such series, to provide
which of the Events of Default shall apply to such series,  to provide for the terms and conditions upon
which the Guarantee by Parent of such series of Securities may be released or
terminated, or to define the rights of the holders of such series of
Securities;


 


(j)            to
issue additional Securities of any series; provided that such additional
Securities have the same terms as, and be deemed part of the same series as,
the applicable series of Securities issued hereunder to the extent required by
Section 2.01(b); or


 


(k)           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 trust hereunder by more than one
Trustee.


 


Upon the request of the Company, accompanied by Board Resolutions
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 9.05, the Trustee shall
join with Parent and the Company in the execution of any such supplemental
indenture, and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
any such supplemental indenture that affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.


 


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


 


Section 9.02                             Supplemental Indentures with Consent of
Securityholders.


 


With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of each
series at the time Outstanding affected by such supplemental indenture or
indentures, Parent and the Company, when 


 


51

















 


authorized by Board Resolutions, and the
Trustee from time to time and at any time may enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of such series
under this Indenture; provided, however, that no such supplemental indenture,
without the consent of the holders of each Security then Outstanding and
affected thereby, shall (i) extend a fixed maturity of or any installment of
principal of any Securities of any series or reduce the principal amount
thereof or reduce the amount of principal of any original issue discount
security that would be due and payable upon declaration of acceleration of the
maturity thereof; (ii) reduce the rate of or extend the time for payment of
interest on any Security of any series; (iii) reduce the premium payable upon
the redemption of any Security; (iv) make any Security payable in Currency
other than that stated in the Security; (v) impair the right to institute suit for
the enforcement of any payment on or after the fixed maturity thereof (or in
the case of redemption, on or after the redemption date); or (vi) reduce the
aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture or indentures.


 


A supplemental indenture that changes or eliminates any covenant, Event
of Default or other provision of this Indenture that has been expressly
included solely for the benefit of one or more particular series of Securities,
if any, or which modifies the rights of the holders of Securities of such
series with respect to such covenant, Event of Default 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 the consent of Securityholders of a
series affected thereby under this Section 9.02 to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.


 


Promptly after the execution by Parent, the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this
Section 9.02, the Company shall mail or caused to be mailed a notice
thereof by first class mail to the Holders of Securities of each series
affected thereby at their addresses as they shall appear on the Security
Register, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect
therein, shall not in any way impair or affect the validity of any such
supplemental indenture.


 


Section 9.03                             Effect of Supplemental Indentures.


 


Upon the execution of any supplemental indenture pursuant to the
provisions of this Article IX or Section 10.01, this Indenture shall be and be
deemed to be modified and amended with respect to such series in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, Parent, the Company and the
holders of Securities of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


52

















 


Section 9.04                             Securities Affected by Supplemental Indentures.


 


Securities of any series affected by a supplemental indenture and
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01 may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.


 


Section 9.05                             Execution of Supplemental Indentures.


 


Upon the request of the Company, accompanied by Board Resolutions
authorizing the execution of any such supplemental indenture, and, if
applicable, upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with Parent and the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee in its discretion  may but shall
not be obligated to enter into such supplemental indenture. The Trustee,
subject to the provisions of Section 7.01, may receive an Opinion of Counsel
and Officer’s Certificate as conclusive evidence that any supplemental
indenture executed pursuant to this Article IX is authorized or permitted by,
and conforms to, the terms of this Article IX.


 


Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.05, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Securityholders of each series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.


 


ARTICLE X.


 


SUCCESSOR


 


Section 10.01                       Consolidation, Merger and Sale of Assets.


 


Each of Parent and the Company, covenants that it will not merge or
consolidate with any other Person or sell or convey all or substantially all of
its assets to any Person, unless:


 


(i) either Parent or the Company, as the case may be, shall be the
continuing entity, or the successor entity or the Person which acquires by sale
or conveyance substantially all the assets of Parent or the Company, as the
case may be (if other than Parent or the Company, as the case may be),
(A) shall expressly assume the due and punctual payment of the principal
of, premium, if any, and interest on all the Securities or the obligations
under the Guarantees, as the case may be,


 


53

















 


according to their tenor, and the due and punctual performance and
observance of all of the covenants and agreements of this Indenture to be
performed or observed by Parent or the Company, as the case may be, by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such Person and (B) is an entity treated as a “corporation”
for United States tax purposes or Parent or the Company, as the case may be,
obtains either (x) an opinion, in form and substance reasonably acceptable to
the Trustee, of tax counsel of recognized standing reasonably acceptable to the
Trustee, which counsel shall include Gibson, Dunn & Crutcher LLP, or (y) a
ruling from the United States Internal Revenue Service, in either case to the
effect that such merger or consolidation, or such sale or conveyance, will not
result in an exchange of the Securities for new debt instruments for United
States federal income tax purposes; and


 


(ii) no Event of Default and no event that, after notice or lapse
of time or both, would become an Event of Default shall be continuing
immediately after such merger or consolidation, or such sale or conveyance.


 


The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officer’s Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.


 


To the extent that a Board Resolution or supplemental indenture
pertaining to any series provides for different provisions relating to the
subject matter of this Article X, the provisions in such Board Resolution
or supplemental indenture shall govern for purposes of such series.


 


Section 10.02                       Successor Person Substituted.


 


Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of Parent or the
Company, as the case may be, the successor Person formed by such consolidation
or into or with which Parent or the Company, as the case may be, is merged or
to which such sale, lease, conveyance or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
Parent or the Company, as the case may be, under this Indenture with the same
effect as if such successor Person has been named as Parent or the Company, as
the case may be, herein. In the event of any such sale or conveyance (other
than a conveyance by way of lease) Parent or the Company, as the case may be,
or any successor entity which shall theretofore have become such in the manner
described in this Article, shall be discharged from all obligations and
covenants under this Indenture, the Securities and the Guarantees and may be
liquidated and dissolved.


 


ARTICLE XI.


 


SATISFACTION AND DISCHARGE


 


Section 11.01                       Applicability of Article.


 


If the Securities of a series are denominated and payable only in
Dollars (except as provided pursuant to Section 2.01), then the provisions of
this Article XI relating to defeasance of Securities shall be applicable except
as otherwise specified pursuant to Section 2.01 for


 


54

















 


Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign Currency may be specified
pursuant to Section 2.01.


 


Section 11.02                       Satisfaction and Discharge of Indenture.


 


If at any time:


 


(a) Parent or the Company shall have delivered or shall have caused to
be delivered to the Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities that shall have been destroyed, lost
or stolen and that shall have been replaced or paid as provided in Section
2.07) and Securities for whose payment funds or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by Parent
or the Company (and thereupon repaid to Parent or the Company or discharged
from such trust, as provided in Section 11.06); or


 


(b) all such Securities of a particular series not theretofore delivered
to the Trustee for cancellation shall have become due and payable or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and Parent or the Company shall irrevocably
deposit or cause to be deposited with the Trustee as trust funds the entire
amount (in funds or Governmental Obligations sufficient or a combination
thereof) in Dollars (except as otherwise provided pursuant to Section 2.01)
sufficient to pay at maturity or upon redemption all Securities of such series
not theretofore delivered to the Trustee for cancellation, including principal,
premium, if any, and interest due or to become due on such date of maturity or
redemption date, as the case may be, and if in either case Parent or the
Company shall also pay or cause to be paid all other sums payable hereunder
with respect to such series by the Company,


 


then this Indenture shall cease to be of further effect with respect to
such series except for the provisions of Sections 2.03, 2.04, 2.05, 2.07, 4.01,
4.02, 4.03, 7.05 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.06, that shall survive
to such date and thereafter, and the Trustee, on demand of the Company and at
the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.


 


Section 11.03                       Defeasance and Discharge of Obligations; Covenant
Defeasance.


 


(a)           If
at any time:


 


(i) all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 11.02 shall have been paid by Parent or the
Company by depositing irrevocably with the Trustee in trust funds or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption
all such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal, premium, if any, and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and


 


55

















 


(ii) Parent or the Company shall also pay or cause to be paid all
other amounts payable hereunder by the Company with respect to such series,


 


then, after the date such funds or Governmental Obligations, as the
case may be, are deposited with the Trustee, the obligations of Parent and the
Company under this Indenture with respect to such series shall cease to be of
further effect except, to the extent applicable to each, for the provisions of
Sections 2.03, 2.04, 2.05, 2.07, 4.01, 4.02, 4.03, 7.05 and 7.10 hereof that shall
survive until such Securities shall mature and be paid. Thereafter, Sections
7.06 and 11.06 shall survive such satisfaction and discharge.


 


(b)           In
addition, each of Parent and the Company, at its option and at any time, by
written notice executed by an Officer delivered to the Trustee, may elect to
have its obligations, to the extent applicable to each, under Section 5.03 and
any covenant contained in Article X, and any other covenant contained in the
Board Resolution or supplemental indenture relating to such series pursuant to
Section 2.01, discharged with respect to all Outstanding Securities of a
series, this Indenture and any indentures supplemental to this Indenture
insofar as such Securities are concerned (“covenant
defeasance”), such discharge to be effective on the date the
conditions set forth in clauses (i) through (vi) of Section 11.03(c) are
satisfied, and such Securities shall thereafter be deemed to be not “Outstanding”
for the purposes of any direction, waiver, consent or declaration of Securityholders
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be “Outstanding” for all other purposes under this Indenture.
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of a series, Parent and 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 covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 6.01(a)(4) or otherwise, but
except as specified in this Section 11.03(b), the remainder of Parent’s and the
Company’s obligations under the Securities of such series, this Indenture, and
any indentures supplemental to this Indenture with respect to such series shall
be unaffected thereby.


 


(c)           The
following shall be the conditions to the application of Section 11.03 to the
Outstanding Securities of the applicable series:


 


(i)            Parent or the Company
irrevocably deposits in trust with the Trustee or, at the option of the
Trustee, with a trustee satisfactory to the Trustee and Parent or the Company,
as the case may be, under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee, funds or Governmental Obligations
sufficient to pay principal of, premium, if any, and interest on the
Outstanding Securities of such series to maturity or redemption, as the case
may be, and to pay all other amounts payable by it hereunder, provided that (A)
the trustee of the irrevocable trust shall have been irrevocably instructed to
pay such funds or the proceeds of such Governmental Obligations to the Trustee
and (B) the Trustee shall have been irrevocably instructed to apply such funds
or the proceeds of such Governmental Obligations to the payment of said
principal, premium, if any, and interest with respect to the Securities of such
series;


 


56

















 


(ii)           Parent or the Company,
as the case may be, delivers to the Trustee an Officer’s Certificate stating
that all conditions precedent specified herein relating to defeasance or
covenant defeasance, as the case may be, have been complied with, and an
Opinion of Counsel to the same effect;


 


(iii)          no Event of Default
under clauses (1), (2), (3), (5), (6) or (7) of Section 6.01(a) shall have
occurred and be continuing, and no event which with notice or lapse of time or
both would become such an Event of Default shall have occurred and be
continuing, on the date of such deposit;


 


(iv)          Parent or the Company,
as the case may be, shall have delivered to the Trustee an Opinion of Counsel
or a ruling received from the Internal Revenue Service to the effect that the
holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of Parent’s or the Company’s
exercise of either option under this Section 11.03 and will be subject to
Federal income tax in the same amount and in the same manner and at the same
times as would have been the case if such election had not been exercised;


 


(v)           such covenant
defeasance shall not (i) cause the Trustee to have a conflicting interest
for purposes of the Trust Indenture Act with respect to any Securities or
(ii) result in the trust arising from such deposit to constitute, unless
it is qualified, a regulated investment company under the Investment Company
Act of 1940; and


 


(vi)          notwithstanding any
other provisions of this Section 11.03, such covenant defeasance shall be
effected in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on Parent or the Company pursuant to Section
2.01.


 


After such irrevocable deposit made pursuant to this Section 11.03 and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of Parent’s and the Company’s
obligations pursuant to this Section 11.03.


 


Section 11.04                       Deposited Funds to be Held in Trust.


 


All funds or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.02 or 11.03 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including Parent or the Company acting as its own paying agent), to the
holders of the particular series of Securities for the payment or redemption of
which such funds or Governmental Obligations have been deposited with the
Trustee.


 


Section 11.05                       Payment of Funds Held by Paying Agents.


 


In connection with the provisions of Section 11.02 or 11.03, all funds
or Governmental Obligations then held by any paying agent under the provisions
of this Indenture shall, upon demand of Parent or the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such funds or Governmental Obligations.


 


57






 










 


Section 11.06         Repayment
to Parent or the Company.


 


Any funds or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by Parent or the Company, in trust for payment of
principal of, premium, if any, or interest on the Securities of a particular
series that are not applied but remain unclaimed by the holders of such
Securities for at least one year after the date upon which the principal of,
premium, if any, or interest on such Securities shall have respectively become
due and payable, shall be repaid to Parent or the Company, as applicable, or if
then held by Parent or the Company shall be discharged from such trust; and
thereafter, the paying agent and the Trustee shall be released from all further
liability with respect to such funds or Governmental Obligations, and the
holder of any of the Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to Parent or the
Company, as applicable, for the payment thereof. Anything in this Article XI to
the contrary notwithstanding, subject to Section 7.06, the Trustee shall
deliver or pay to Parent or the Company, as applicable, from time to time upon
request by Parent or the Company any funds or Governmental Obligations (or
other property and any proceeds therefrom) held by it as provided in Sections
11.02 or 11.03 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then
be required to be deposited to effect a defeasance or covenant defeasance, as
the case may be, in accordance with this Article XI.


 


Section 11.07         Reinstatement.


 


If the Trustee or paying agent is unable to apply any funds or
Governmental Obligations in accordance with Section 11.02 or 11.03 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, Parent and the Company’s obligations under this Indenture, any
indentures supplemental to this Indenture with respect to the applicable series
of Securities and the Securities of such series shall be revived and reinstated
as though no deposit had occurred pursuant to Section 11.02 or 11.03, as the
case may be, until such time as the Trustee or paying agent is permitted to
apply all such funds or Governmental Obligations in accordance with Section
11.02 or 11.03, as the case may be; provided, however, that if Parent or the
Company has made any payment of principal, premium, if any, or interest on any
Securities of such series following the reinstatement of its obligations as
aforesaid, Parent or the Company, as applicable, shall be subrogated to the
rights of the holders of such Securities of such series to receive such payment
from the funds or Governmental Obligations held by the Trustee or paying agent.


 


ARTICLE XII.


 


IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


Section 12.01         No
Recourse.


 


No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer or
director, past, present or future as such, of Parent or the 


 


58

















 


Company or of any predecessor or successor corporation, either directly
or through Parent or the Company or any such predecessor or successor
corporation, 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 Parent or the Company or of any
predecessor or successor corporation, 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 of
the Securities 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
of the Securities 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 Securities.


 


ARTICLE XIII.


 


MISCELLANEOUS PROVISIONS


 


Section 13.01         Effect
on Successors and Assigns.


 


All the agreements of Parent and the Company in this Indenture or the
Securities shall bind its respective successor whether so expressed or not. All
agreements of the Trustee in this Indenture shall bind its successor whether so
expressed or not.


 


Section 13.02         Actions
by Successor.


 


Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of Parent
or the Company shall and may be done and performed with like force and effect
by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful sole successor of Parent or the Company, as
applicable.


 


Section 13.03         Notices.


 


Any notice or communication by Parent, the Company or the Trustee to
the others is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
other’s address:


 


	
  If to the Company:

  	
   

  	
  Tyco Electronics Group S.A.

  
	
   

  	
   

  	
  17, boulevard Grande-Duchesse
  Charlotte

  
	
   

  	
   

  	
  L-1331 Luxembourg

  
	
   

  	
   

  	
  Attention: Paul Hussey, Managing Director

  
	
   

  	
   

  	
  Facsimile
  No.: +352 46-43-50

  



 


59

















 


	
  If to Parent:

  	
   

  	
  Tyco Electronics Ltd.

  
	
   

  	
   

  	
  96 Pitts Bay Road, Second Floor

  
	
   

  	
   

  	
  Pembroke HM 08, Bermuda

  
	
   

  	
   

  	
  Attention: H. Gregory Barksdale, Secretary

  
	
   

  	
   

  	
  Facsimile No.: 441-294-0604

  
	
   

  	
   

  	
   

  
	
  In either case, with copies to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tyco Electronics Corporation

  
	
   

  	
   

  	
  1050 Westlakes Drive

  
	
   

  	
   

  	
  Berwyn, PA 19312

  
	
   

  	
   

  	
  Facsimile No.: 610-893-9602

  
	
   

  	
   

  	
  Attention: Robert A. Scott, Executive Vice President and

  General Counsel

  
	
   

  	
   

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tyco Electronics Corporation

  
	
   

  	
   

  	
  1050 Westlakes Drive

  
	
   

  	
   

  	
  Berwyn, PA 19312

  
	
   

  	
   

  	
  Facsimile No.: 610-893-9494

  
	
   

  	
   

  	
  Attention: Mario Calastri, Senior Vice President and

  
	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gibson, Dunn &
  Crutcher LLP

  
	
   

  	
   

  	
  200 Park Avenue

  
	
   

  	
   

  	
  New York, New York 10166

  
	
   

  	
   

  	
  Attention: Steven R.
  Finley

  
	
   

  	
   

  	
  Facsimile No.: (212)
  351-4035

  
	
   

  	
   

  	
   

  
	
  If to the Trustee:

  	
   

  	
  Deutsche Bank Trust
  Company Americas

  
	
   

  	
   

  	
  60 Wall
  Street, 27th Floor

  
	
   

  	
   

  	
  MS:
  NYC60-2710

  
	
   

  	
   

  	
  New York, NY
  10005

  
	
   

  	
   

  	
  Attention: Trust
  & Securities Services

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deutsche Bank National Trust Company

  
	
   

  	
   

  	
  for Deutsche Bank Trust Company Americas

  
	
   

  	
   

  	
  25 DeForest Avenue

  
	
   

  	
   

  	
  Mail Stop: SUM01-0105

  
	
   

  	
   

  	
  Summit, New Jersey 07901

  
	
   

  	
   

  	
  Attn: Trust & Securities Services

  
	
   

  	
   

  	
  Facsimile No.:
  732-578-4635

  



 


60

















 


Parent, the Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.


 


All notices and communications (other than those sent to Securityholders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.


 


Any notice or communication to a Securityholder shall be mailed by
first-class mail, certified or registered, return receipt requested, to his
address shown on the Security Register. Failure to mail a notice or
communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.


 


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


 


If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed duly given, whether or
not the addressee receives it.


 


Section 13.04         Governing
Law.


 


This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State without regard to conflicts
of laws principles that would require the application of any other law. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.


 


Section 13.05         Treatment
of Securities as Debt.


 


It is intended that the Securities will be treated as indebtedness and
not as equity for United States federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this intention.


 


Section 13.06        Compliance
Certificates and Opinions.


 


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


 


61

















 


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


 


Section 13.07         Payments
on Business Days.


 


Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officer’s Certificate or established in one
or more indentures supplemental to this Indenture, in any case where the date
of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of principal,
premium, if any, or interest or principal and premium, if any, may be made on
the next succeeding Business Day with the same force and effect as if made on
the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.


 


Section 13.08         Conflict
with Trust Indenture Act.


 


If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.


 


Section 13.09         Counterparts.


 


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


 


Section 13.10         Separability.


 


In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.


 


Section 13.11         No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be used to interpret another indenture, loan or
debt agreement of Parent, the Company or a Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.


 


62

















 


Section 13.12         Table
of Contents, Headings, Etc.


 


The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.


 


Section 13.13         Consent
to Jurisdiction and Service of Process.


 


Each of Parent and the Company agrees that any legal suit, action or
proceeding brought by any party to enforce any rights under or with respect to
this Indenture, any Security and any Guarantee or any other document or the
transactions contemplated hereby or thereby may be instituted in any state or
federal court in The City of New York, State of New York, United States of
America, irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding, irrevocably waives to the fullest extent permitted
by law any claim that and agrees not to claim or plead in any court that any
such action, suit or proceeding brought in such court has been brought in an
inconvenient forum and irrevocably submits to the non-exclusive jurisdiction of
any such court in any such suit, action or proceeding or for recognition and
enforcement of any judgment in respect thereof.


 


Each of Parent and the Company hereby irrevocably and unconditionally
designates and appoints CT Corporation System, 111 Eighth Avenue, New York, New
York 10011, U.S.A. (and any successor entity) as its authorized agent to
receive and forward on its behalf service of any and all process which may be
served in any such suit, action or proceeding in any such court and agrees that
service of process upon CT Corporation shall be deemed in every respect
effective service of process upon the Company in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon Parent
or the Company, as the case may be. Said designation and appointment shall be
irrevocable. Nothing in this Section 13.13 shall affect the right of the
Holders to serve process in any manner permitted by law or limit the right of
the Holders to bring proceedings against Parent or the Company in the courts of
any jurisdiction or jurisdictions. Each of Parent and the Company further
agrees to take any and all action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as the Securities are outstanding. Each of Parent and the Company hereby
irrevocably and unconditionally authorizes and directs CT Corporation to accept
such service on its behalf. If for any reason CT Corporation ceases to be
available to act as such, each of Parent and the Company agrees to designate a
new agent in New York City.


 


To the extent that Parent or the Company has or hereafter may acquire
any immunity from jurisdiction of any court (including any court in the United
States, the State of New York, Luxembourg, Bermuda or other jurisdiction in
which Parent or the Company, or any successor thereof, may be organized or any
political subdivisions thereof) or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property or
assets, this Indenture, the Securities, the Guarantees or any other documents
or actions to enforce judgments in respect of any thereof, then each of Parent
and the Company hereby irrevocably waives such immunity, and 


 


63

















 


any defense based on such immunity, in respect of its obligations under
the above-referenced documents and the transactions contemplated thereby, to
the extent permitted by law.


 


Section 13.14         Waiver
of Jury Trial.


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 13.15         USA
Patriot Act


 


The parties hereto acknowledge that in accordance with Section 326 of
the USA Patriot Act the Trustee, like all financial institutions and in order
to help fight the funding of terrorism and money laundering, is required to
obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with Deutsche Bank
Trust Company Americas. The parties to this Indenture agree that they will
provide the Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the USA Patriot Act.


 


ARTICLE XIV.


 


ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS


 


Section 14.01         Redemption
Upon Changes in Withholding Taxes.


 


The Securities of any series may be redeemed, as a whole but not in
part, at the option of the Company, upon not less than 30 nor more than 90 days
notice (which notice shall be irrevocable), at a redemption price equal to 100%
of the principal amount thereof, together with accrued interest, if any, to the
redemption date and Additional Amounts (as defined in Section 14.02), if
any, if as a result of any amendment to, or change in, the laws or regulations
of Luxembourg, Bermuda or the United States, as applicable, or any political
subdivision thereof or therein having the power to tax (a “Taxing Jurisdiction”)
or any change in the application or official interpretation of such laws,
including any action taken by a taxing authority or a holding by a court of
competent jurisdiction (regardless of whether such action or such holding is
with respect to the Company or Parent), which amendment or change is announced
or becomes effective after the date the Securities of such series are issued,
Parent or the Company has become, or there is a material probability that it will
become, obligated to pay Additional Amounts on the next date on which any
amount would be payable with respect to the Securities of such series, and such
obligation cannot be avoided by the use of commercially reasonable measures
available to Parent or the Company, as the case may be; provided, however, that
(a) no such notice of redemption may be given earlier than 90 days prior
to the earliest date on which Parent or the Company, as the case may be, would
be obligated to pay such Additional Amounts, and (b) at the time such
notice of redemption is given, such obligation to pay such Additional Amounts
remains in effect. Prior to the giving of any notice of redemption described in
this paragraph, the Company shall deliver to the Trustee
(i)(A) certificate signed by two directors of 


 


64

















 


the Company stating that the obligation to pay Additional Amounts
cannot be avoided by the Company taking commercially reasonable measures
available to it or (B) a certificate signed by two Officers of Parent
stating that the obligation to pay Additional Amounts cannot be avoided by
Parent taking commercially reasonable measures available to it, as the case may
be, and (ii) a written opinion of independent legal counsel to Parent or
the Company, as the case may be, of recognized standing to the effect that the
Company has or there is a material probability that it will become obligated to
pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that Parent or the Company,
as the case may be, cannot avoid the payment of such Additional Amounts by
taking commercially reasonable measures available to it.


 


Section 14.02         Payment
of Additional Amounts.


 


All payments made by Parent or the Company under or with respect to the
Securities and the Guarantees will be made free and clear of and without
withholding or deduction for or on account of any present or future taxes,
duties, levies, imposts, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless Parent or the Company, as
the case may be, is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. In the event that Parent or the
Company is required to so withhold or deduct any amount for or on account of
any Taxes from any payment made under or with respect to the Securities or the
Guarantees, as the case may be, Parent or the Company, as the case may be, will
pay such additional amounts (“Additional
Amounts”) as may be necessary so that the net amount received by
each holder of Securities (including Additional Amounts) after such withholding
or deduction will equal the amount that such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment to a holder of
Securities where such holder  is subject to taxation on such payment by a relevant Taxing
Jurisdiction for any reason other than the holder’s mere ownership of the
Securities or for or on account of:


 


(a)           any
Taxes that are imposed or withheld solely because the beneficial owner of such
Securities or a fiduciary, settler, beneficiary, or member of the beneficial
owner if the beneficial owner is an estate, trust, partnership, limited
liability company or other fiscally transparent entity, or a person holding a
power over an estate or trust administered by a fiduciary holder:


 


(i)                                     is
or was present or engaged in, or is or was treated as present or engaged in, a
trade or business in the Taxing Jurisdiction or has or had a permanent establishment
in the Taxing Jurisdiction;


 


(ii)           has or had any present or former connection (other
than the mere fact of ownership of such Securities) with the Taxing
Jurisdiction imposing such Taxes, including being or having been a citizen or
resident thereof or being treated as being or having been a resident thereof;


 


(iii)          with respect to any withholding Taxes imposed
by the United States, is or was with respect to the United States a personal
holding company, a 


 


65

















 


passive foreign investment company, a controlled foreign corporation, a
foreign tax exempt organization or corporation that has accumulated earnings to
avoid United States federal income tax; or


 


(iv)          owns or owned 10% or more of the total
combined voting power of all classes of stock of the Parent or the Company;


 


(b)           any
estate, inheritance, gift, sales, transfer, excise or personal property Taxes
imposed with respect to the Securities, except as otherwise provided herein;


 


(c)           any
Taxes imposed solely as a result of the presentation of such Securities (where
presentation is required) for payment on a date more than 30 days after the
date on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever is later, except to the extent that the
beneficiary or Holder thereof would have been entitled to the payment of
Additional Amounts had the Securities been presented for payment on any date
during such 30-day period;


 


(d)           any
Taxes imposed solely as a result of the failure of the beneficial owner or any
other person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connection with the Taxing Jurisdiction of the holder or
beneficial owner of such Securities, if such compliance is required by statute
or regulation of the relevant Taxing Jurisdiction as a precondition to relief
or exemption from such Taxes;


 


(e)           with
respect to withholding Taxes imposed by the United States, any such Taxes
imposed by reason of the failure of the beneficial owner to fulfill the
statement requirements of sections 871(h) or 881(c) of the Code;


 


(f)            any
Taxes that are payable by any method other than withholding or deduction by the
Parent or the Company or any paying agent from payments in respect of such
Securities;


 


(g)           any
Taxes required to be withheld by any paying agent from any payment in respect
of any Securities if such payment can be made without such withholding by at
least one other paying agent;


 


(h)           any
Taxes required to be deducted or withheld pursuant to the European Council
Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the
form of interest payments, or any law implementing or complying with, or
introduced in order to conform to, that Directive;


 


(i)            any
withholding or deduction for Taxes which would not have been imposed if the
relevant Securities had been presented to another paying agent in a Member State
of the European Union; or


 


(j)            any
combination of Section 14.02(a), (b), (c), (d), (e), (f), (g), (h) and (i).


 


66

















 


Additional Amounts also will not be payable to a Holder of Securities
that is a fiduciary, partnership, limited liability company or other fiscally
transparent entity, or to a beneficial owner of Securities that is not the sole
beneficial owner of such Securities, as the case may be. This exception,
however, will apply only to the extent that a beneficiary or settlor with
respect to the fiduciary, or a beneficial owner or member of the partnership,
limited liability company or other fiscally transparent entity, would not have
been entitled to the payment of an Additional Amount had the beneficiary,
settlor, beneficial owner or member 
received directly its beneficial or distributive share of the payment.


 


Parent or the Company, as the case may be, will also (i) make such
withholding or deduction of Taxes and (ii) remit the full amount of Taxes
so deducted or withheld to the relevant Taxing Jurisdiction in accordance with
all applicable laws. Parent or the Company, as applicable, will use its commercially
reasonable efforts to obtain certified copies of tax receipts evidencing the
payment of any Taxes so deducted or withheld from each Taxing Authority
imposing such Taxes. Parent or the Company, as the case may be, will, upon
request, make available to the holders of the Securities, within 90 days after
the date the payment of any Taxes so deducted or withheld is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by
Parent or the Company or if, notwithstanding Parent’s or the Company’s efforts
to obtain such receipts, the same are not obtainable, other evidence of such
payments by Parent or the Company.


 


At least 30 days prior to each date on which any payment under or with
respect to the Securities or Guarantees is due and payable, if Parent or the
Company will be obligated to pay Additional Amounts with respect to such
payment, Parent or the Company will deliver to the Trustee an Officer’s
Certificate stating the fact that such Additional Amounts will be payable, the
amounts so payable and will set forth such other information as is necessary to
enable such Trustee to pay such Additional Amounts to holders of Securities on
the payment date.


 


In addition, the Company will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties
and Additional Amounts with respect thereto, payable in Luxembourg or the
United States or any political subdivision or taxing authority of or in the
foregoing in respect of the creation, issue, offering, enforcement, redemption
or retirement of the Securities.


 


The provisions of this Article XIV shall survive any termination of the
discharge of this Indenture and shall apply mutatis mutandis to any
jurisdiction in which Parent or the Company or any successor Person to Parent
or the Company, as the case may be, is organized or is engaged in business for
tax purposes or any political subdivisions or taxing authority or agency
thereof or therein; provided, however, the date on which Parent or the Company
changes its jurisdiction in which it is organized or such Person becomes a
successor to Parent or the Company, as the case may be, shall be substituted
for the date on which the series of Securities was issued.


 


Whenever in this Indenture, the Securities or the Guarantees there is
mentioned, in any context, the payment of principal and premium, if any,
redemption price, interest or any other amount payable under or with respect to
any Security, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof.


 


67

















 


ARTICLE XV.


 


GUARANTEES


 


Section 15.01         Guarantee.


 


Parent hereby fully and unconditionally guarantees (i) to each
holder of each Security that is authenticated and delivered by the Trustee, and
(ii) to the Trustee on behalf of such Holder, the due and punctual payment
of the principal of, premium, if any, and interest on such Security when and as
the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of
such Security and of this Indenture. In case of the failure of the Company
punctually to make any such payment, Parent hereby agrees to cause such payment
to be made punctually when and as the same shall become due and payable,
whether at the stated maturity or by acceleration, call for redemption or
otherwise, and as if such payment were made by the Company.


 


Parent hereby agrees that its obligations hereunder shall be absolute
and unconditional, irrespective of, and shall be unaffected by, the validity,
regularity or enforceability of such Security or this Indenture, the absence of
any action to enforce the same or any release, amendment, waiver or indulgence
granted to the Company or Parent or any consent to departure from any
requirement of any other guarantee of all or any of the Securities or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor. Parent hereby waives the benefits of
diligence, presentment, demand for payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest or notice
with respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guarantee will not be discharged in
respect of such Security except by complete performance of the obligations
contained in such Security and in such Guarantee. Parent agrees that if, after
the occurrence and during the continuance of an Event of Default, the Trustee
or any of the Holders of the applicable series of Securities are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of such Securities, to collect interest on such Securities, or to
enforce or exercise any other right or remedy with respect to such Securities,
Parent agrees to pay to the Trustee for the account of such Holders, upon
demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any
of such Holders.


 


Parent shall be subrogated to all rights of the holders of the
Securities against the Company in respect of any amounts paid by Parent on
account of such Security pursuant to the provisions of its Guarantee or this
Indenture; provided, however, that Parent shall not be entitled to enforce or
to receive any payment arising out of, or based upon, such right of subrogation
until the principal of and interest on all Securities of such series issued
hereunder shall have been paid in full.


 


68

















 


The Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any part of the Company’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of such Securities, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any holder of such Securities, whether as a “voidable
preference,” “fraudulent transfer,” or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, such Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.


 


Any term or provision of the Guarantee to the contrary notwithstanding,
the aggregate amount of the obligations guaranteed hereunder shall be reduced
to the extent necessary to prevent such Guarantee from violating or becoming
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.


 


Section 15.02         Execution
and Delivery of Guarantee.


 


The Guarantee shall include the terms of the Guarantee set forth in
Section 15.01 and shall be substantially in the form established pursuant
to Section 2.16. Parent hereby agrees to execute its Guarantee, in a form
established pursuant to Section 2.16, on each Security authenticated and
delivered by the Trustee.


 


The Guarantee shall be executed on behalf of Parent by any one of its
chairman of the Board of Directors, president, vice presidents or other person
duly authorized by Parent’s Board of Directors. The signature of any or all of
these persons on the Guarantee may be manual or facsimile.


 


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


 


The delivery of any Security by the Trustee, after the authentication
thereof, shall constitute due delivery of the Guarantee on behalf of Parent and
shall bind Parent notwithstanding the fact that the Guarantee does not bear the
signature of Parent. Parent agrees that its Guarantee set forth in
Section 15.01 and in the form of Guarantee established pursuant to
Section 2.16 shall remain in full force and effect notwithstanding any failure
to execute a Guarantee on any such Security.


 


Section 15.03         Release
of Guarantee.


 


Notwithstanding anything in this Article XV to the contrary,
concurrently with the payment in full of the principal of, premium, if any, and
interest on Securities of a series, Parent shall be released from and relieved
of its obligations under this Article XV with respect to the 


 


69

















 


Securities of such series. Upon the delivery by the Company to the
Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect
that the transaction giving rise to the release of this Guarantee was made by
the Company in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required in
order to evidence the release of Parent from its obligations under this
Guarantee. If any of the obligations to pay the principal of, premium, if any,
and interest on such Securities and all other obligations of the Company are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of Parent under this Guarantee shall be revived and reinstated as
if this Guarantee had not been terminated until such time as the principal of,
premium, if any, and interest on such Securities are paid in full, and Parent
shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.


 


70

















 


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


 


	
   

  	
  TYCO ELECTRONICS GROUP S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Mario Calastri

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mario Calastri

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TYCO ELECTRONICS LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Terrence R. Curtin

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Terrence R. Curtin

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard L. Buckwalter

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard L. Buckwalter

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carol Ng

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Carol Ng

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


71

















 


EXHIBIT A


 


FORM OF CERTIFICATE OF TRANSFER


 


Tyco
Electronics Group S.A.


17, boulevard Grande-Duchesse
Charlotte


L-1331 Luxembourg


Attention: The Managing Directors


 


[Trustee]

[Address]


 


Re: [insert description of
Securities]


 


Ladies and Gentlemen,


 


Reference is hereby made to the Indenture, dated as of                ,
      , among Tyco Electronics Group S.A., a Luxembourg
company (the “Company”), Tyco
Electronics Ltd., a Bermuda company (“Parent”),
and                       ,
a                       ,
as trustee (the “Trustee”), [as
supplemented by that certain supplemental indenture dated as of                 ][and
the Board Resolution adopted                  ]
(together, the “Indenture”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.                           
(the “Transferor”) owns and
proposes to transfer the Security or Securities or interest[s] in such Security
or Securities specified in Annex A hereto, in the principal amount of $                 
in such Security or Securities or interest[s] (the “Transfer”), to                  
(the “Transferee”), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:


 


[CHECK ALL THAT APPLY


 


1.             o            Check if
Transferee will take delivery of a beneficial interest in the 144A Global
Security or a Definitive Security Pursuant to Rule 144A. The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A (a “QIB”)
in a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any State of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Security will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Security and/or the
Definitive Security and in the Indenture and the Securities Act.


 


2.             o            Check if
Transferee will take delivery of a beneficial interest in the Regulation 


 


A-1

















 


S Global Security or a Definitive Security pursuant to Regulation S. The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (y) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (z) the transaction was executed
in, on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904 (b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed Transfer is being
made prior to the expiration of the Distribution Compliance Period, the
Transfer is not being made to a U.S. person (as such is defined in Regulation
S) or for the account or benefit of a U.S. person (other than an initial
purchaser of the Securities) and the interest transferred will be held
immediately thereafter through Euroclear or Clearstream. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Security and/or the Definitive Security and in the
Indenture and the Securities Act.


 


3.             o            Check and
complete if Transferee will take delivery of a beneficial interest in a
Definitive Security pursuant to any provision of the Securities Act other than
Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any State of the
United States, and accordingly the Transferor hereby further certifies that
(check one):


 


(a)           o            Such Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act; or


 


(b)           o            Such Transfer is
being effected to the Company or a subsidiary thereof; or


 


(c)           o            Such Transfer is
being effected pursuant to an effective registration statement under the
Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act; or


 


(d)           o            Such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Security or
Restricted Definitive Security and the requirements of the exemption claimed,
which certification is supported by a 


 


A-2

















 


certificate executed by the Transferee in the form attached as Exhibit
C to the Indenture. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the Definitive Security will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Definitive Security and in the Indenture and the Securities Act.


 


4.             o            Check if Transferee will take
delivery of a beneficial interest in an Unrestricted Global Security or of an
Unrestricted Definitive Security.


 


(a)           o            Check if Transfer is pursuant to Rule 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in
the Indenture and the Securities Act.


 


(b)           o            Check if Transfer is Pursuant to Regulation S. (i)
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in
the Indenture and the Securities Act.


 


(c)           o            Check if Transfer is Pursuant to Other Exemption. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities or Restricted Definitive Securities and in the
Indenture.


 


A-3

















 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.


 


	
   

  	
   

  	
  Dated: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  



[Insert Name of Transferor]


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


A-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.             The
Transferor owns and proposed to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)           o            a beneficial interest in the:


 


(i)            o            144A Global Security (CUSIP           ),
or


 


(ii)           o            Regulation S Global Security (CUSIP           ),
or


 


(b)           o            a Restricted Definitive Security.


 


2.             After
the transfer the Transferee will hold:


 


(a)           o            a beneficial interest in the:


 


(i)            o            144A Global Security (CUSIP            ),
or


 


(ii)           o            Regulation S Global Security (CUSIP           ),
or


 


(iii)          o            Unrestricted Global Security (CUSIP            );
or


 


(b)           o            a Restricted Definitive Security; or


 


(c)           o            an Unrestricted Definitive Security,


 


in accordance with the terms of the Indenture.


 


A-5

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF EXCHANGE


 


Tyco
Electronics Group S.A.


17, boulevard Grande-Duchesse
Charlotte


L-1331 Luxembourg


Attention: The Managing Directors


 


[Trustee]


[Address of Trustee]


 


Re: [insert description of
the Securities]


 


Ladies and Gentlemen,


 


Reference is hereby made to the Indenture, dated as of                  ,
      , among Tyco Electronics Group S.A., a
Luxembourg company (the “Company”),
Tyco Electronics Ltd., a Bermuda company (“Parent”),
and                          ,
a                          ,
as trustee (the “Trustee”) [as
supplemented by that certain supplemental indenture dated as of              ][and
the Board Resolution adopted                ]
(together, the “Indenture”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


                            ,
(the “Owner”) owns and proposes to
transfer the Security or Securities or interest[s] in such Security or
Securities specified herein, in the principal amount of $             
in such Security or Securities or interest[s] (the “Exchange”). In connection with the Transfer, the Transferor
hereby certifies that:


 


1.             Exchange of Restricted
Definitive Securities or Beneficial Interests in a Restricted Global Security
for Unrestricted Definitive Securities or Beneficial Interests in an
Unrestricted Global Security.


 


(a)           o            Check if Exchange is from beneficial interest in a
Restricted Global Security to beneficial interest in an Unrestricted Global
Security. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Security for a beneficial interest
in an Unrestricted Global Security in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with the United States Securities Act of 1933, as amended
(the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Security is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.


 


B-1

















 


(b)           o            Check if Exchange is from beneficial
interest in a Restricted Global Security to Unrestricted Definitive Security. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for an Unrestricted Definitive Security in an equal principal amount, the Owner hereby certifies (i) the
Definitive Security is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Securities and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Definitive Security
is being acquired in compliance with any applicable blue sky securities laws of
any State of the United States.


 


(c)           o            Check if Exchange is from Restricted
Definitive Security to beneficial interest in an Unrestricted Global Security. In
connection with the Owner’s Exchange of a Restricted Definitive Security for a
beneficial interest in an Unrestricted Global Security, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Security is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.


 


(d)           o            Check if Exchange is from Restricted
Definitive Security to Unrestricted Definitive Security. In
connection with the Owner’s Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security, the Owner hereby certifies (i) the
Unrestricted Definitive Security is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Security is being acquired in compliance with any
applicable blue sky securities laws of any State of the United States.


 


2.             Exchange of Restricted
Definitive Securities or Beneficial Interests in Restricted Global Securities
for Restricted Definitive Securities or Beneficial Interests in Restricted
Global Securities.


 


(a)           o            Check if Exchange is from beneficial
interest in a Restricted Global Security to Restricted Definitive Security. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security is
being acquired for the Owner’s own account without transfer. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Security issued will continue to be subject to the
restrictions on transfer enumerated in the 


 


B-2

















 


Private Placement Legend printed on the Restricted Definitive Security
and in the Indenture and the Securities Act.


 


(b)           o            Check if Exchange is from Restricted
Definitive Security to beneficial interest in a Restricted Global Security. In
connection with the Exchange of the Owner’s Restricted Definitive Security for
a beneficial interest in the: [CHECK ONE] o 144A Global Security
or o
Regulation S Global Security with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Global Securities and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any State of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Security and in the Indenture and the Securities Act.


 


B-3

















 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.


 


	
   

  	
   

  



[Insert Name of Owner]


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


 


	
  Dated:

  	
   

  	
   

  



 


 


B-4

















 


EXHIBIT C


 


FORM OF CERTIFICATE FROM ACQUIRING

INSTITUTIONAL ACCREDITED INVESTOR


 


Tyco
Electronics Group S.A.


17, boulevard Grande-Duchesse
Charlotte


L-1331 Luxembourg


Attention: The Managing Directors


 


[Trustee]


[Address of Trustee]


 


Re: [insert description of
the Securities]


 


Ladies and Gentlemen,


 


Reference is hereby made to the Indenture, dated as of                    ,
     , among Tyco Electronics Group S.A., a Luxembourg
company (the “Company”), Tyco
Electronics Ltd., a Bermuda company (“Parent”),
and                                   ,
a                                   ,
as trustee (the “Trustee”) [as
supplemented by that certain supplemental indenture dated as of                ][and
the Board Resolution adopted                  ]
(together, the “Indenture”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


In connection with our proposed purchase of $              
aggregate principal amount of: (a) a beneficial interest in a Global Security,
or (b) a Definitive Security, we confirm that:


 


1.             We
understand that any subsequent transfer of the Securities or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Securities or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the “Securities
Act”).


 


2.             We
understand that the offer and sale of the Securities have not been registered
under the Securities Act, and that the Securities and any interest therein may
not be offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell the Securities or any interest
therein, we will do so only (1) in the United States to a person whom the
seller reasonably believes is a “qualified institutional buyer” (as defined in
Rule 144A under the Securities Act) in a transaction meeting the requirements
of Rule 144A, (2) outside the United States in an offshore transaction in
accordance with Rule 904 under the Securities Act, (3) pursuant to an exemption
from registration under the Securities Act provided by Rule 144 thereunder (if
available) or (4) pursuant to an effective registration statement under the
Securities Act, in each of cases (1) through (4) in accordance with any
applicable securities laws of any 


 


C-1

















 


state of the United States, and we further agree to notify any
purchaser of the Securities from us of the resale restrictions referred to
above.


 


3.             We
understand that, on any proposed resale of the Securities or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that any subsequent transfer by
us of the Securities or beneficial interest therein acquired by us must be
effected through one of the initial purchasers of the Securities.


 


4.             We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Securities, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.


 


5.             We
are acquiring the Securities or beneficial interest therein purchased by us for
our own account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion.


 


C-2

















 


You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.


 


 


	
   

  	
    Dated:

  	
   

  	
  ,

  	
   

  	
   

  



[Insert Name of Accredited
Investor]


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


C-3