Exhibit 4.16


 


 


FAVRILLE,
INC.,


 


Issuer


 


AND


 


[TRUSTEE]


 


Trustee


 






 


INDENTURE


 


Dated as
of [·], 200


 






 


Subordinated
Debt Securities


 


 


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1 DEFINITIONS

  	
  1

  
	
  Section 1.01 Definitions of Terms

  	
  1

  
	
  ARTICLE 2 ISSUE, DESCRIPTION,
  TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  	
  5

  
	
  Section 2.01 Designation and Terms of
  Securities

  	
  5

  
	
  Section 2.02 Form of Securities and
  Trustee’s Certificate

  	
  7

  
	
  Section 2.03 Denominations: Provisions for
  Payment

  	
  7

  
	
  Section 2.04 Execution and Authentication

  	
  9

  
	
  Section 2.05 Registration of Transfer and
  Exchange

  	
  10

  
	
  Section 2.06 Temporary Securities

  	
  11

  
	
  Section 2.07 Mutilated, Destroyed, Lost or
  Stolen Securities

  	
  11

  
	
  Section 2.08 Cancellation

  	
  12

  
	
  Section 2.09 Benefits of Indenture

  	
  12

  
	
  Section 2.10 Authenticating Agent

  	
  12

  
	
  Section 2.11 Global Securities

  	
  13

  
	
  ARTICLE 3 REDEMPTION OF
  SECURITIES AND SINKING FUND PROVISIONS

  	
  14

  
	
  Section 3.01 Redemption

  	
  14

  
	
  Section 3.02 Notice of Redemption

  	
  14

  
	
  Section 3.03 Payment Upon Redemption

  	
  15

  
	
  Section 3.04 Sinking Fund

  	
  16

  
	
  Section 3.05 Satisfaction of Sinking Fund
  Payments with Securities

  	
  16

  
	
  Section 3.06 Redemption of Securities for
  Sinking Fund

  	
  16

  
	
  ARTICLE 4 COVENANTS

  	
  17

  
	
  Section 4.01 Payment of Principal, Premium and
  Interest

  	
  17

  
	
  Section 4.02 Maintenance of Office or Agency

  	
  17

  
	
  Section 4.03 Paying Agents

  	
  17

  
	
  Section 4.04 Appointment to Fill Vacancy in
  Office of Trustee

  	
  18

  
	
  Section 4.05 Compliance with Consolidation
  Provisions

  	
  18

  
	
  ARTICLE 5 SECURITYHOLDERS’ LISTS
  AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  19

  
	
  Section 5.01 Company to Furnish Trustee Names
  and Addresses of Securityholders

  	
  19

  
	
  Section 5.02 Preservation Of Information;
  Communications With Securityholders

  	
  19

  



 


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  Section 5.03 Reports by the Company

  	
  19

  
	
  Section 5.04 Reports by the Trustee

  	
  20

  
	
  ARTICLE 6 REMEDIES OF THE
  TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  20

  
	
  Section 6.01 Events of Default

  	
  20

  
	
  Section 6.02 Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
  22

  
	
  Section 6.03 Application of Moneys or Property
  Collected

  	
  23

  
	
  Section 6.04 Limitation on Suits

  	
  24

  
	
  Section 6.05 Rights and Remedies Cumulative;
  Delay or Omission Not Waiver

  	
  24

  
	
  Section 6.06 Control by Securityholders

  	
  25

  
	
  Section 6.07 Undertaking to Pay Costs

  	
  25

  
	
  ARTICLE 7 CONCERNING THE TRUSTEE

  	
  26

  
	
  Section 7.01 Certain Duties and
  Responsibilities of Trustee

  	
  26

  
	
  Section 7.02 Certain Rights of Trustee

  	
  27

  
	
  Section 7.03 Trustee Not Responsible for
  Recitals or Issuance or Securities

  	
  28

  
	
  Section 7.04 May Hold Securities

  	
  28

  
	
  Section 7.05 Moneys Held in Trust

  	
  28

  
	
  Section 7.06 Compensation and Reimbursement

  	
  29

  
	
  Section 7.07 Reliance on Officers’ Certificate

  	
  29

  
	
  Section 7.08 Disqualification; Conflicting
  Interests

  	
  29

  
	
  Section 7.09 Corporate Trustee Required;
  Eligibility

  	
  30

  
	
  Section 7.10 Resignation and Removal;
  Appointment of Successor

  	
  30

  
	
  Section 7.11 Acceptance of Appointment By
  Successor

  	
  31

  
	
  Section 7.12 Merger, Conversion, Consolidation
  or Succession to Business

  	
  32

  
	
  Section 7.13 Preferential Collection of Claims
  Against the Company

  	
  33

  
	
  Section 7.14 Notice of Default

  	
  33

  
	
  ARTICLE 8 CONCERNING THE
  SECURITYHOLDERS

  	
  33

  
	
  Section 8.01 Evidence of Action by
  Securityholders

  	
  33

  
	
  Section 8.02 Proof of Execution by
  Securityholders

  	
  34

  
	
  Section 8.03 Who May be Deemed Owners

  	
  34

  
	
  Section 8.04 Certain Securities Owned by
  Company Disregarded

  	
  34

  
	
  Section 8.05 Actions Binding on Future
  Securityholders

  	
  35

  
	
  ARTICLE 9 SUPPLEMENTAL
  INDENTURES

  	
  35

  



 


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  Section 9.01 Supplemental Indentures Without
  the Consent of Securityholders

  	
  35

  
	
  Section 9.02 Supplemental Indentures With
  Consent of Securityholders

  	
  36

  
	
  Section 9.03 Effect of Supplemental Indentures

  	
  37

  
	
  Section 9.04 Securities Affected by
  Supplemental Indentures

  	
  37

  
	
  Section 9.05 Execution of Supplemental
  Indentures

  	
  37

  
	
  ARTICLE 10 SUCCESSOR ENTITY

  	
  38

  
	
  Section 10.01 Company May Consolidate,
  Etc.

  	
  38

  
	
  Section 10.02 Successor Entity Substituted

  	
  38

  
	
  Section 10.03 Evidence of Consolidation, Etc.
  to Trustee

  	
  39

  
	
  ARTICLE 11 SATISFACTION AND
  DISCHARGE

  	
  39

  
	
  Section 11.01 Satisfaction and Discharge of
  Indenture

  	
  39

  
	
  Section 11.02 Discharge of Obligations

  	
  40

  
	
  Section 11.03 Deposited Moneys to be Held in
  Trust

  	
  40

  
	
  Section 11.04 Payment of Moneys Held by Paying
  Agents

  	
  40

  
	
  Section 11.05 Repayment to Company

  	
  40

  
	
  ARTICLE 12 IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  41

  
	
  Section 12.01 No Recourse

  	
  41

  
	
  ARTICLE 13 MISCELLANEOUS
  PROVISIONS

  	
  41

  
	
  Section 13.01 Effect on Successors and Assigns

  	
  41

  
	
  Section 13.02 Actions by Successor

  	
  41

  
	
  Section 13.03 Surrender of Company Powers

  	
  41

  
	
  Section 13.04 Notices

  	
  42

  
	
  Section 13.05 Governing Law

  	
  42

  
	
  Section 13.06 Treatment of Securities as Debt

  	
  42

  
	
  Section 13.07 Certificates and Opinions as to
  Conditions Precedent

  	
  42

  
	
  Section 13.08 Payments on Business Days

  	
  43

  
	
  Section 13.09 Conflict with Trust Indenture Act

  	
  43

  
	
  Section 13.10 Counterparts

  	
  43

  
	
  Section 13.11 Separability

  	
  43

  
	
  Section 13.12 Compliance Certificates

  	
  43

  
	
  ARTICLE 14 SUBORDINATION OF
  SECURITIES

  	
  44

  
	
  Section 14.01 Subordination Terms

  	
  44

  



 


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INDENTURE


 


INDENTURE, dated as of [·], 200 , among Favrille, Inc., a
Delaware corporation (the “Company”),
and [TRUSTEE], as trustee (the “Trustee”):


 


WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of subordinated debt securities (hereinafter referred
to as the “Securities”), in an unlimited
aggregate principal amount to be issued from time to time in one or more series
as in this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;


 


WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and


 


WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, 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 1



DEFINITIONS


 


Section 1.01         Definitions
of Terms.


 


The terms defined in this
Section (except as in this Indenture or any indenture supplemental hereto
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 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
of 1939, as amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein or any indenture
supplemental hereto otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.


 


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


 


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


 


“Board
of Directors” means the Board of Directors of the Company or any
duly authorized committee of such Board.


 


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


 


“Business
Day” means, with respect to any series of Securities, any day
other than a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or in the city of the Corporate Trust
Office of the Trustee, are authorized or obligated by law, executive order or
regulation to close.


 


“Certificate”
means a certificate signed by any Officer. 
The Certificate need not comply with the provisions of Section 13.07.


 


“Company”
means Favrille, Inc., a corporation duly organized and existing under the
laws of the State of Delaware, and, subject to the provisions of Article Ten,
shall also include its successors and assigns.


 


“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
              .


 


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


 


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


 


“Depositary”
means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Securities and Exchange Act
of 1934, as amended (the “Exchange Act”),
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.


 


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


 


“Global
Security” means, with respect to any series of Securities, 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 the
Indenture, which shall be registered in the name of the Depositary or its
nominee.


 


“Governmental
Obligations” means securities that are (a) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof at any time prior to
the stated maturity of the Securities, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to 


 


2

















 


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.


 


“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.


 


“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.


 


“Interest
Payment Date”, when used with respect to any installment of
interest on a Security of a particular series, means the date specified 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, with respect to the Company, the chairman of the Board of Directors, a
chief executive officer, a president, a chief financial officer, chief
operating officer, any executive vice president, any senior vice president, any
vice president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.


 


“Officers’
Certificate” means a certificate signed by any two
Officers.  Each such certificate shall
include the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.


 


“Opinion
of Counsel” means an opinion in writing subject to customary
exceptions of legal counsel, who may be an employee of or counsel for 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 13.07, if and to the extent required by
the provisions thereof.


 


“Outstanding”,
when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of
that series theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the Trustee or
any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been 


 


3

















 


made for giving
such notice; and (c) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07.


 


“Person”
means any individual, corporation, partnership, joint venture, joint-stock
company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or
political subdivision or an agency or instrumentality 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.


 


“Responsible
Officer” when used with respect to the Trustee means the
chairman of its board of directors, the chief executive officer, the president,
any vice president, the secretary, the treasurer, any trust officer, any
corporate trust officer or any other officer or assistant 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 or her knowledge of and
familiarity with the particular subject.


 


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


 


“Securityholder”,
“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” and “Security Registrar”
shall have the meanings as set forth in Section 2.05.


 


“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority
of whose outstanding Voting Stock shall at the time be owned, directly or indirectly,
by such Person or by one or more of its Subsidiaries or by such Person and one
or more of its Subsidiaries, (ii) any general partnership, joint venture
or similar entity, at least a majority of whose outstanding partnership or
similar interests shall at the time be owned by such Person, or by one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a
general partner.


 


“Trustee”
means               ,
and, subject to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person.  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.


 


“Voting
Stock”, as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary 


 


4

















 


voting power for
the election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.


 


ARTICLE 2



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 up to the aggregate principal amount of Securities of
that series from time to time authorized by or pursuant to a Board Resolution
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,
and set forth in an Officers’ Certificate, or established in one or more
indentures supplemental hereto:


 


(1)           the title of the Securities of the series
(which shall distinguish the Securities of that 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
of the Securities of the series is payable, any original issue discount that
may apply to the Securities of that series upon their issuance, the principal
amount due at maturity, and the place(s) of payment;


 


(4)           the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or
rates, if any;


 


(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, the
place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of
determination of such record dates;


 


(6)           the right, if any, to extend the interest
payment periods and the duration of such extension;


 


(7)           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;


 


5

















 


(8)           the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund,
mandatory redemption, or analogous provisions (including payments made in cash
in satisfaction 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 or purchased, in whole or in part, pursuant to such obligation;


 


(9)           the form of the Securities of the series
including the form of the Certificate of Authentication for such series;


 


(10)         if other than denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, the
denominations in which the Securities of the series shall be issuable;


 


(11)         any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the
Securities of that series and any security for the obligations of the Company
with respect to such Securities) with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required by or
advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series;


 


(12)         whether the Securities are issuable as a
Global Security and, in such case, the terms and the identity of the Depositary
for such series;


 


(13)         whether the Securities will be
convertible into or exchangeable for shares of common stock or other securities
of the Company or any other Person and, if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the
conversion or exchange price, as applicable, or how it will be calculated and
may be adjusted, any mandatory or optional (at the Company’s option or the
holders’ option) conversion or exchange features, and the applicable conversion
or exchange period;


 


(14)         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;


 


(15)         any additional or different Events of
Default or restrictive covenants (which may include, among other restrictions,
restrictions on the Company’s ability or the ability of the Company’s
Subsidiaries to: incur additional indebtedness; issue additional securities;
create liens; pay dividends or make distributions in respect of their capital
stock; redeem capital stock; place restrictions on such Subsidiaries placing
restrictions on their ability to pay dividends, make distributions or transfer
assets; make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage in
transactions with stockholders and affiliates; issue or sell stock of their
Subsidiaries; or effect a consolidation or merger) or financial covenants
(which may include, among other financial covenants, financial covenants that
require the Company and its Subsidiaries to maintain specified interest
coverage, fixed charge, cash flow-based or asset-based ratios) provided for
with respect to the Securities of the series;


 


6

















 


(16)         if other than dollars, the coin or
currency in which the Securities of the series are denominated (including, but
not limited to, foreign currency);


 


(17)         the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest,
premium, if any and principal amounts of the Securities of the series to any
Securityholder that is not a “United States person” for federal tax purposes;


 


(18)         any restrictions on transfer, sale or
assignment of the Securities of the series; and


 


(19)         the subordination terms of the Securities
of the series.


 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.


 


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 Officers’ Certificate of the Company
setting forth the terms of the series.


 


Securities of any
particular series may be issued at various times, 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 on which such interest may be payable and with
different redemption dates.


 


Section 2.02         Form of
Securities and Trustee’s Certificate.


 


The Securities of any
series and the Trustee’s certificate of authentication to be borne by such
Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution,
and set forth in an Officers’ Certificate, and they 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,
or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to
conform to usage.


 


Section 2.03         Denominations:
Provisions for Payment.


 


The Securities shall be
issuable as registered Securities and in the denominations of one thousand U.S.
dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10).  The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with respect to
that series.  Subject to Section 2.01(a)(16),
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
payable in the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or agency of
the Company 


 


7

















 


maintained for
that purpose in the Borough of Manhattan, the City and State of New York.  Each Security shall be dated the date of its
authentication.  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.


 


Any interest on any
Security that is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; 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 an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided.  Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment.  The
Trustee shall promptly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her
address as it appears in the Security Register (as hereinafter defined), not
less than 10 days prior to such special record date.  Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been 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.


 


(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, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.


 


8

















 


Unless otherwise set
forth in a Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to Section 2.01
hereof, the term “regular record date” as used in this Section with
respect to a series of Securities and any Interest Payment Date for such series
shall mean either the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the first day of the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.


 


Subject to the foregoing
provisions of this Section, each Security of a series delivered under this
Indenture upon transfer of 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.


 


Section 2.04         Execution
and Authentication.


 


The Securities shall be
signed on behalf of the Company by one of its Officers.  Signatures may be in the form of a manual or
facsimile signature.


 


The Company may use the
facsimile signature of any Person who shall have been an Officer,
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be such an
officer of the Company.  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 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, and the Trustee in accordance with such written order shall
authenticate and deliver such Securities.


 


In authenticating such
Securities and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.


 


The Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.


 


9
















Section 2.05         Registration of Transfer and Exchange.


 


(a)           Securities of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section.  In respect of any Securities so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.


 


(b)           The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of Manhattan, the
City and State of New York, or such other location designated by the Company, a
register or registers (herein referred to as 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 in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee.  The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed as
authorized by Board Resolution (the “Security Registrar”).


 


Upon surrender for transfer of any Security at the
office or agency of the Company designated for such purpose, the Company shall
execute, the Trustee shall authenticate and such office or agency shall deliver
in the name of the transferee or transferees a new Security or Securities of
the same series as the Security presented for a like aggregate principal
amount.


 


All Securities presented or surrendered for exchange
or registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Security Registrar, duly executed by the registered holder or by such
holder’s duly authorized attorney in writing.


 


(c)           Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, no
service charge shall be made for any exchange or registration of transfer of
Securities, or 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 exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.


 


(d)           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, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption, other than the unredeemed portion of any such
Securities being redeemed in part.  The
provisions of this Section 2.05 are, with respect to any Global Security,
subject to Section 2.11 hereof.


 


10

















 


Section 2.06         Temporary Securities.


 


Pending the preparation of definitive Securities of
any series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination.  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 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 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 designated for the purpose in the Borough of Manhattan, the City
and State of New York, 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, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.


 


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, and upon the Company’s request the
Trustee (subject as aforesaid) shall authenticate and deliver, 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.  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 of the Company. 
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 may,
instead of issuing a substitute Security, 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.


 


11

















 


Every replacement Security issued pursuant to the
provisions of this Section 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 shall, if surrendered to the
Company or any paying agent, 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. 
In the absence of such request the Trustee may dispose of canceled
Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company.  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.


 


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 (and, with respect to
the provisions of Article Fourteen, the holders of any indebtedness of the
Company to which the Securities of any series are subordinated) 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 (and, with respect to the
provisions of Article Fourteen, the holders of any indebtedness of the
Company to which the Securities of any series are subordinated).


 


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.  Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
issued upon exchange, 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 


 


12

















 


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 at any time resign by
giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time (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)           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 and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security 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, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction and (iv) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture,
this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such
successor Depositary.”


 


(b)           Notwithstanding the provisions of Section 2.05,
the Global Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.


 


(c)           If at any time the Depositary for a 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, as the case may be, or if an Event
of Default has occurred and is continuing and the Company has received a
request from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and
subject to Section 2.04, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security.  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 


 


13

















 


provisions of this Section 2.11
shall no longer apply to the Securities of such series.  In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officers’
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in exchange
for such Global Security.  Upon the
exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee.  Such Securities
in definitive registered form issued in exchange for the Global Security
pursuant to this Section 2.11(c) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
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.


 


ARTICLE 3



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 hereof.


 


Section 3.02         Notice of Redemption.


 


(a)           In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so
pursuant to Section 2.01 hereof, the Company shall, or shall cause the
Trustee 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
Officers’ 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 payment of the redemption price
of such Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon 


 


14

















 


presentation and
surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that 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 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 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 less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a
shorter notice 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, and thereupon the Trustee shall select, by lot or in
such other manner as it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions (equal to one
thousand U.S. dollars ($1,000) or any integral multiple thereof) of the
principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Securities to be redeemed, in whole or in
part.  The Company may, if and whenever
it shall so elect, by delivery of instructions signed on its behalf by an
Officer, 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, 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.


 


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 and
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, said 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 2.03).


 


15

















 


(b)           Upon presentation of any Security of such series that
is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security of
the same series of authorized denominations in principal amount equal to the
unredeemed portion of the Security so presented.


 


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 herein referred to as
a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred
to as an “optional sinking fund payment”. 
If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 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 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 as provided for by the terms of such series, provided
that such Securities have not been previously so credited.  Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.


 


Section 3.06         Redemption of Securities for Sinking
Fund.


 


Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period shall be
satisfactory to the Trustee), the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, 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 and
will, together with such Officers’ Certificate, 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 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.


 


16

















 


ARTICLE 4



COVENANTS


 


Section 4.01         Payment of Principal, Premium and
Interest.


 


The Company will duly and punctually pay or cause to
be paid the principal of (and premium, if any) and interest on the Securities
of that 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 agrees to maintain an office or agency in the Borough
of Manhattan, the City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Securities of that series may be
presented for payment, (ii) Securities of that series may be presented as
herein above authorized for registration of transfer and exchange, and (iii) notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by any officer authorized to sign an Officers’ Certificate and delivered
to the Trustee, 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, 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 such
presentations, notices and demands.  The
Company initially appoints the Corporate Trust Office of the Trustee located in
the Borough of Manhattan, the City of New York as its paying agent with respect
to the Securities.


 


Section 4.03         Paying Agents.


 


(a)           If the Company shall appoint one or more paying agents
for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:


 


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


 


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


 


17

















 


(3)           that it will, at any time during the continuance of
any failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and


 


(4)           that it will perform all other duties of paying agent
as set forth in this Indenture.


 


(b)           If the Company shall act as its own paying agent with
respect to any series of the Securities, it will on or before each due date of
the principal of (and premium, if any) or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Securities of that series until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it or any other
obligor on such Securities) to take such action.  Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.


 


(c)           Notwithstanding anything in this Section to the
contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any paying agent to
pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to
such money.


 


Section 4.04         Appointment to Fill Vacancy in Office
of Trustee.


 


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


 


Section 4.05         Compliance with Consolidation
Provisions.


 


The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either
case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article Ten hereof are complied with.


 


18
















 


ARTICLE 5



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) within 15 days after each regular
record date (as defined in Section 2.03) 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 regular record 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 request in writing within 30 days after the receipt by the Company
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that,
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)           The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so
furnished.


 


(c)           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, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture
Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.


 


Section 5.03         Reports
by the Company.


 


The Company covenants and
agrees to provide a copy to the Trustee, after the Company files the same with
the Securities and Exchange 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 Securities and Exchange Commission may from time to time
by rules and regulations prescribe) that the Company files with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; provided, however, the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the SEC. The Company shall also comply with
the requirements of Section 314 of the Trust Indenture Act, but only to
the extent then applicable to the Company.


 


 


19

















 


Section 5.04         Reports
by the Trustee.


 


(a)           On or before July 1 in each year in
which any of the Securities are Outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report dated as of the
preceding May 1, if and to the extent required under Section 313(a) of
the Trust Indenture Act.


 


(b)           The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.


 


(c)           A copy of each such report shall, at the
time of such transmission to Securityholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Securities are listed (if
so listed) and also with the Securities and Exchange Commission. The Company
agrees to notify the Trustee when any Securities become listed on any
securities exchange.


 


ARTICLE 6



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:


 


(1)           the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and
when the same shall become due and payable, and such default continues for a
period of 90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of interest
for this purpose;


 


(2)           the Company defaults in the payment of
the principal of (or premium, if any, on) any of the Securities of that series
as and when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series; provided,
however, that a valid extension of the maturity of such Securities in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of principal or premium, if any;


 


(3)           the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained
in this Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by
registered or 


 


20

















 


certified mail, or
to the Company and the Trustee by the holders of at least 25% in principal
amount of the Securities of that series at the time Outstanding;


 


(4)           the Company pursuant to or within the
meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents
to the entry of an order for relief against it in an involuntary case, (iii) consents
to the appointment of a Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit of its
creditors; or


 


(5)           a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case, (ii) appoints a Custodian of the Company
for all or substantially all of its property or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed and in
effect for 90 days.


 


(b)           In each and every such case (other than
an Event of Default specified in clause (4) or clause (5) above),
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 the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on)
and accrued and unpaid interest on 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. If an Event of Default specified in
clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be
immediately due and payable without any declaration or other act on the part of
the Trustee or the holders of the Securities.


 


(c)           At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys 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 the Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a
sum 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 per annum expressed in the Securities of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events of
Default under the Indenture with respect to such series, other than the
nonpayment of principal on (and premium, if any, on) and accrued and unpaid
interest 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.


 


 


21

















 


(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, subject
to any determination in such proceedings, 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.


 


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 in 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 90 Business 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 (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and 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 per annum 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 sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys
adjudged or decreed to be payable in the manner provided by law or equity out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.


 


(c)           In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its 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 shall (except as may be
otherwise provided by law) 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 the 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 moneys or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized 


 


 


22

















 


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 without the
possession of any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and 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 hereunder, the Trustee may in its discretion 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 the
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 Moneys or Property Collected.


 


Any moneys or property
collected by the Trustee pursuant to this Article 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
moneys or property on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:


 


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


 


SECOND: To the payment of
all indebtedness of the Company to which such series of Securities is
subordinated to the extent required by Section 7.06 and Article Fourteen;


 


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


 


FOURTH: To the payment of
the remainder, if any, to the Company or any other Person lawfully entitled
thereto, as requested by the Company.


 


 


23

















 


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, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written 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 90 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 90 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 or 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 and 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, each and every
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 to the Trustee or to the
Securityholders shall, to the extent permitted by law, 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 as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section 6.04,



 


 


24

















 


every power and
remedy given by this Article 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, however, that such direction
shall not be in conflict with any rule of law or with this Indenture.
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
shall, by a Responsible Officer or officers of the Trustee, determine that the
proceeding so directed, subject to the Trustee’s duties under the Trust
Indenture Act, would involve the Trustee in personal liability or might be
unduly prejudicial to the Securityholders not involved in the proceeding. 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,
may on behalf of the holders of all of the Securities of such series 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, or 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,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
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 (or 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.


 


 


25

















 


ARTICLE 7



CONCERNING THE TRUSTEE


 


Section 7.01         Certain
Duties and Responsibilities of Trustee.


 


(a)           The Trustee, prior to the occurrence of
an Event of Default with respect to the Securities of a series and after the
curing of all Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. 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 man would exercise or use under
the circumstances in the conduct of his 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:


 


(i)            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:


 


(A)          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


 


(B)          in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to the Securities of such series
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 requirement of this Indenture;


 


(ii)           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;


 


(iii)         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


 


 


26
















 


the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture
with respect to the Securities of that series; and


 


(iv)          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 rely conclusively and shall be 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 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 any authorized officer of the
Company (unless other evidence in respect thereof is specifically prescribed
herein);


 


(c)           The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken 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
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Securities (that has not been cured
or waived), to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;


 


(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, unless requested in
writing so to do by the holders of not less than a majority in principal amount
of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of 


 


27

















 


the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding. The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand; and


 


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


 


In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (1) any Event of
Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01
hereof or (2) any Default or Event of Default of which the Trustee shall
have received written notification in the manner set forth in this Indenture or
a Responsible Officer of the Trustee shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section 5.03
is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any
information contained therein, or determinable from information contained
therein including the Company’s compliance with any of their covenants
thereunder (as to which the Trustee is entitled to rely conclusively on an
Officers’ Certificate).


 


Section 7.03         Trustee Not Responsible for Recitals or
Issuance or 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 moneys 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 moneys
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.


 


Section 7.05         Moneys Held in Trust.


 


Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were 


 


28

















 


received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon.


 


Section 7.06         Compensation and Reimbursement.


 


(a)           The Company covenants and agrees to pay to the
Trustee, and the Trustee shall be entitled to, such reasonable 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
may from time to time 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, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ), except any such
expense, disbursement or advance as may arise from its negligence or bad faith
and except as the Company and Trustee may from time to time agree in writing.
The Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense 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 reasonable costs and expenses of
defending itself against any claim of liability in the premises.


 


(b)           The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall constitute indebtedness
of the Company to which the Securities are subordinated. Such additional
indebtedness shall 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.


 


Section 7.07         Reliance on Officers’ Certificate.


 


Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it reasonably 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) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted 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.


 


29

















 


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 of America 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 Securities and Exchange
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority.


 


If such corporation or other Person 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, the combined capital and surplus of such corporation or other Person
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
Person directly or indirectly controlling, controlled by, or under common
control with 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,
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
at any time resign 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 shall promptly appoint a
successor trustee with respect to Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
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:


 


(i)            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


 


(ii)           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 any such Securityholder; or


 


30

















 


(iii)         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;


 


then, in any such case, the Company may remove the
Trustee with respect to all Securities and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may, on behalf
of that holder and all others similarly situated, 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.


 


(c)           The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding may at any time
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 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;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.


 


(b)           In case of the appointment hereunder of a successor
trustee with respect to the Securities of 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 


 


31

















 


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


 


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


 


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


 


(e)           Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company.


 


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 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 


 


32

















 


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.


 


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.


 


Section 7.14         Notice of Default


 


If any Default or any Event of Default occurs and is
continuing and if such Default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act notice of the Default or Event of Default within 45 days after it
occurs and becomes known to the Trustee, unless such Default or Event of
Default has been cured; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
any Security, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Securityholders.


 


ARTICLE 8



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 may, at its option, as evidenced by an
Officers’ Certificate, 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 


 


33

















 


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.


 


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


 


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.


 


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 or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Securities of that series 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 the
Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been


 


34
















 


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 a Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. 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.


 


Section 8.05         Actions Binding on Future
Securityholders.


 


At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the 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 may, by filing written notice with the Trustee, and upon proof
of holding as provided in Section 8.02, 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 9



SUPPLEMENTAL INDENTURES


 


Section 9.01         Supplemental Indentures Without the
Consent of Securityholders.


 


In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as 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;


 


(b)           to comply with Article Ten;


 


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


 


(d)           to add to the covenants, restrictions, conditions or
provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of Securities,
stating that such covenants, restrictions, conditions or provisions are
expressly being 


 


35

















 


included solely for the
benefit of such series), to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or
power herein conferred upon the Company;


 


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


 


(f)            to make any change that does not adversely affect the
rights of any Securityholder in any material respect;


 


(g)           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 establish the form of any certifications required to be furnished pursuant
to the terms of this Indenture or any series of Securities, or to add to the
rights of the holders of any series of Securities;


 


(h)           to evidence and provide for the acceptance of
appointment hereunder by a successor trustee; or


 


(i)            to comply with any requirements of the Securities and
Exchange Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.


 


The Trustee is hereby authorized to join with 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 may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 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 affected by such supplemental indenture or indentures
at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as 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 shall, without the consent of the holders of each Security then
Outstanding and affected thereby, (a) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or 


 


36

















 


reduce any premium
payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such
supplemental indenture.


 


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


 


Section 9.03         Effect of Supplemental Indentures.


 


Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders 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.


 


Section 9.04         Securities Affected by Supplemental
Indentures.


 


Securities of any series affected by a supplemental
indenture, 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 securities 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, 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 its
Board Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, will be
entitled to receive and will be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution
thereof; provided, however, that such Officers’ Certificate or Opinion of
Counsel need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01
hereof.


 


37

















 


Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, 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 all 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 10



SUCCESSOR ENTITY


 


Section 10.01       Company May Consolidate, Etc.


 


Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental to this Indenture, nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of (premium, if any) and interest on all of the Securities of
all series in accordance with the terms of each series, according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act, as then in
effect) reasonably satisfactory in form to the Trustee executed and delivered
to the Trustee by the entity formed by such consolidation, or into which the
Company shall have been merged, or by the entity which shall have acquired such
property.


 


Section 10.02       Successor Entity Substituted.


 


(a)           In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding,
such successor entity shall succeed to and be substituted for the Company with
the same effect as if it had been named as the Company herein, and thereupon
the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.


 


38

















 


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


 


(c)           Nothing contained in this Article shall require
any action by the Company in the case of a consolidation or merger of any
Person into the Company where the Company is the survivor of such transaction,
or the acquisition by the Company, by purchase or otherwise, of all or any part
of the property of any other Person (whether or not affiliated with the
Company).


 


Section 10.03       Evidence of Consolidation, Etc. to
Trustee.


 


The Trustee, subject to the provisions of Section 7.01,
may receive an Officers’ Certificate or an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
other disposition, and any such assumption, comply with the provisions of this
Article.


 


ARTICLE 11



SATISFACTION AND DISCHARGE


 


Section 11.01       Satisfaction and Discharge of Indenture.


 


If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series
theretofore authenticated and not delivered to the Trustee for cancellation
(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 money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and
thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
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 the Company shall deposit or
cause to be deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
at maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and 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 if 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 thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, 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.


 


39

















 


Section 11.02       Discharge of Obligations.


 


If at any time 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 11.01 shall have been
paid by the Company by depositing irrevocably with the Trustee as trust funds
moneys 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 (and 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 if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities
shall mature and be paid.


 


Thereafter, Sections 7.06 and 11.05 shall survive.


 


Section 11.03       Deposited Moneys to be Held in Trust.


 


All moneys or Governmental Obligations deposited with
the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through any paying
agent (including 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
moneys or Governmental Obligations have been deposited with the Trustee.


 


Section 11.04       Payment of Moneys Held by Paying Agents.


 


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


 


Section 11.05       Repayment to Company.


 


Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or 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 two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable
escheat or abandoned or unclaimed property law, shall be repaid to the Company
on May 31 of each year or upon the Company’s request or (if then held by
the Company) shall be discharged from such trust; and thereupon the paying
agent and the Trustee shall be released from all further liability with respect
to such moneys or Governmental Obligations, and the holder of any of the
Securities entitled to receive such payment shall thereafter, as a general
creditor, look only to the Company for the payment thereof.


 


40
















 


ARTICLE 12



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,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through 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, stockholders,
officers or directors as such, of 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,
stockholder, 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 13



MISCELLANEOUS PROVISIONS


 


Section 13.01       Effect on Successors and Assigns.


 


All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its
successors and assigns, 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 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 successor of the Company.


 


Section 13.03       Surrender of Company Powers.


 


The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company and as to any successor corporation.


 


41

















 


Section 13.04       Notices.


 


Except as otherwise expressly provided herein, any
notice, request or demand that by any provision of this Indenture is required
or permitted to be given, made or served by the Trustee or by the holders of
Securities or by any other Person pursuant to this Indenture to or on the
Company may be given or served by being deposited in first class mail, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Trustee), as follows: 10445 Pacific Center Court, San Diego, CA 92121.
Any notice, election, request or demand by the Company or any Securityholder or
by any other Person pursuant to this Indenture to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.


 


Section 13.05       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, except
to the extent that the Trust Indenture Act is applicable.


 


Section 13.06       Treatment of Securities as Debt.


 


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


 


Section 13.07       Certificates and Opinions as to
Conditions Precedent.


 


(a)           Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) 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 required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.


 


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


 


42

















 


Section 13.08       Payments on Business Days.


 


Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officers’ 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
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 13.09       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 13.10       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 13.11       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 13.12       Compliance Certificates.


 


The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year during which any Securities of any
series were outstanding, a compliance certificate stating whether or not the
signer knows of any Default or Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal
executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company
and the Company’s performance under this Indenture and that the Company has
complied with all conditions and covenants under this Indenture. For purposes
of this Section 13.12, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such a
Default or Event of Default, the certificate shall describe any such Default or
Event of Default and its status.


 


43

















 


ARTICLE 14



SUBORDINATION OF SECURITIES


 


Section 14.01       Subordination Terms.


 


The payment by the Company of the principal of,
premium, if any, and interest on any series of securities issued hereunder
shall be subordinated to the extent set forth in an indenture supplemental
hereto relating to such Securities.


 


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


 


	
   

  	
  FAVRILLE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE], as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


44

















 


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


 


45

















 


CROSS-REFERENCE TABLE (1)


 


	
  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(c)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
   

  	
   

  	
  13.12

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.07(a)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.07(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.01(b)

  
	
  315(b)

  	
   

  	
  7.14

  
	
  3 15(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
  3 15(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)

  	
   

  	
  13.09

  



 






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


 


46