exv4w4



 





EXHIBIT 4.4




 





FORM OF



SENIOR INDENTURE




Between




TRANSMETA CORPORATION




and




U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE




Dated as of                     , 2007




 






 









 








TABLE SHOWING REFLECTION IN THIS INDENTURE OF

CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939*




	 	 	 
	Section of	 	Section
	Indenture	 	of Act
	   
	310(a)(1)
	 	7.09
	310(a)(2)
	 	7.09
	310(a)(3)
	 	Inapplicable
	310(a)(4)
	 	Inapplicable
	310(a)(5)
	 	7.09
	310(b)
	 	7.08, 7.10
	310(c)
	 	Inapplicable
	311(a)
	 	7.13(a), 7.13(c)
	311(b)
	 	7.13(b), 7.13(c)
	311(c)
	 	Inapplicable
	312(a)
	 	5.01, 5.02(a)
	312(b)
	 	5.02(b)
	312(c)
	 	5.02(c)
	313(a)
	 	5.04(a)
	313(b)(1)
	 	Inapplicable
	313(b)(2)
	 	5.04(b)
	313(c)
	 	5.04(c)
	313(d)
	 	5.04(d)
	314(a)(1)
	 	5.03(a)
	314(a)(2)
	 	5.03(b)
	314(a)(3)
	 	5.03(c)
	314(a)(4)
	 	5.03(d)
	314(b)
	 	Inapplicable
	314(c)
	 	13.03
	314(d)
	 	Inapplicable
	314(e)
	 	13.03
	314(f)
	 	Omitted
	315(a)
	 	7.01
	315(b)
	 	6.10
	315(c)
	 	7.01
	315(d)
	 	7.01
	315(e)
	 	6.11
	316(a)(1)
	 	6.09
	316(a)(2)
	 	Omitted
	316(b)
	 	6.06
	316(c)
	 	6.09
	317(a)
	 	6.02, 6.03
	317(b)
	 	4.06
	318(a)
	 	13.05








 




			
	*	 	This Table is not part of the Indenture.





 









 





	 	 	 	 	 
	ARTICLE ONE DEFINITIONS
	 	 	1	 
	SECTION 1.01. Certain Terms Defined
	 	 	1	 
	“Affiliate”
	 	 	2	 
	“Agent”
	 	 	2	 
	“Authenticating Agent”
	 	 	2	 
	“Authorized Newspaper”
	 	 	2	 
	“Board of Directors”
	 	 	2	 
	“Board Resolution”
	 	 	2	 
	“Business Day”
	 	 	2	 
	“Commission”
	 	 	2	 
	“Company”
	 	 	3	 
	“Company Order”
	 	 	3	 
	“covenant defeasance”
	 	 	3	 
	“Coupon”
	 	 	3	 
	“Defaulted Interest”
	 	 	3	 
	“Depository”
	 	 	3	 
	“ECU”
	 	 	3	 
	“Euro” or “euro”
	 	 	3	 
	“Event of Default”
	 	 	3	 
	“Exchange Act”
	 	 	3	 
	“Foreign Currency”
	 	 	3	 
	“Holder,” “Holder of Securities,” “Securityholder”
	 	 	3	 
	“Interest Payment Date”
	 	 	3	 
	“IRS”
	 	 	4	 
	“Judgment Currency”
	 	 	4	 
	“Officer’s Certificate”
	 	 	4	 
	“Opinion of Counsel”
	 	 	4	 
	“Original Issue Date”
	 	 	4	 
	“Original Issue Discount Security”
	 	 	4	 
	“Outstanding”
	 	 	4	 
	“Paying Agent”
	 	 	5	 
	“Periodic Offering”
	 	 	5	 
	“Person
	 	 	5	 






 









 






	 	 	 	 	 
	“Predecessor Security”
	 	 	5	 
	“principal”
	 	 	5	 
	“Principal Office of the Trustee”
	 	 	5	 
	“Record Date”
	 	 	5	 
	“Register”
	 	 	5	 
	“Registered Global Security”
	 	 	5	 
	“Registered Security”
	 	 	6	 
	“Required Currency”
	 	 	6	 
	“Responsible Officer”
	 	 	6	 
	“Special Record Date”
	 	 	6	 
	“Stated Maturity”
	 	 	6	 
	“Indenture”
	 	 	6	 
	“Security” or “Securities”
	 	 	6	 
	“Supplemental Indenture”
	 	 	6	 
	“Trustee”
	 	 	6	 
	“Trust Indenture Act”
	 	 	6	 
	“United States Dollars”
	 	 	6	 
	“Unregistered Security”
	 	 	6	 
	“U.S. Government Obligations”
	 	 	7	 
	“Yield to Maturity”
	 	 	7	 
	ARTICLE TWO ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES
	 	 	7	 
	SECTION 2.01. Form of Securities and Trustee’s Certificate of Authentication
	 	 	7	 
	SECTION 2.02. Form of Trustee’s Certificate of Authentication
	 	 	7	 
	SECTION 2.03. Amount Unlimited, Issuable in Series
	 	 	7	 
	SECTION 2.04. Authentication and Delivery of Indentures
	 	 	10	 
	SECTION 2.05. Execution of Securities
	 	 	12	 
	SECTION 2.06. Certificate of Authentication
	 	 	13	 
	SECTION 2.07. Denominations; Payment of Interest on Securities
	 	 	13	 
	SECTION 2.08. Registration, Transfer and Exchange of Securities
	 	 	14	 
	SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities
	 	 	16	 
	SECTION 2.10. Cancellation and Destruction of Surrendered Securities
	 	 	17	 
	SECTION 2.11. Temporary Securities
	 	 	18	 






ii 









 






	 	 	 	 	 
	SECTION 2.12. Securities in Global Form; Depositories
	 	 	18	 
	SECTION 2.13. CUSIP Numbers
	 	 	21	 
	SECTION 2.14. Series May Include Tranches
	 	 	21	 
	ARTICLE THREE REDEMPTION OF SECURITIES AND SINKING FUNDS
	 	 	21	 
	SECTION 3.01. Applicability of Article
	 	 	21	 
	SECTION 3.02. Notice of Redemption; Partial Redemptions
	 	 	21	 
	SECTION 3.03. Payment of Securities Called for Redemption
	 	 	23	 
	SECTION 3.04. Exclusion of Certain Securities From Eligibility for Selection for Redemption
	 	 	23	 
	SECTION 3.05. Mandatory and Optional Sinking Funds
	 	 	24	 
	ARTICLE FOUR PARTICULAR COVENANTS OF THE COMPANY
	 	 	26	 
	SECTION 4.01. Payment of Principal of and Interest on Securities
	 	 	26	 
	SECTION 4.02. Corporate Existence of the Company; Consolidation, Merger, Sale or Transfer
	 	 	26	 
	SECTION 4.03. Maintenance of Offices or Agencies for Transfer, Registration, Exchange and Payment
of Securities
	 	 	26	 
	SECTION 4.04. Appointment to Fill a Vacancy in the Office of Trustee
	 	 	27	 
	SECTION 4.05. Duties of Paying Agent
	 	 	28	 
	SECTION 4.06. Notice of Default
	 	 	28	 
	SECTION 4.07. Maintenance of Properties
	 	 	29	 
	SECTION 4.08. Payment of Taxes and Other Claims
	 	 	29	 
	SECTION 4.09. Luxembourg Publications
	 	 	29	 
	ARTICLE FIVE SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	29	 
	SECTION 5.01. Company to Furnish Trustee Information as to the Names and Addresses of
Securityholders
	 	 	29	 
	SECTION 5.02. Preservation of Information; Communication to Securityholders
	 	 	30	 
	SECTION 5.03. Reports by Company
	 	 	31	 
	SECTION 5.04. Reports by Trustee
	 	 	31	 
	ARTICLE SIX REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 	 	33	 
	SECTION 6.01. Events of Default; Acceleration, Waiver of Default and Restoration of
Position and Rights
	 	 	33	 
	SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on Securities on
Default in Payment of Interest or Principal
	 	 	36	 






iii 









 






	 	 	 	 	 
	SECTION 6.03. Trustee May File Proofs of Claim
	 	 	37	 
	SECTION 6.04. Trustee May Enforce Claims Without Possession of Securities
	 	 	37	 
	SECTION 6.05. Application of Moneys Collected by Trustee
	 	 	38	 
	SECTION 6.06. Limitation on Suits by Holders of Securities
	 	 	38	 
	SECTION 6.07. Rights and Remedies Cumulative
	 	 	39	 
	SECTION 6.08. Delay or Omission Not Waiver
	 	 	39	 
	SECTION 6.09. Control by Holders; Waiver of Past Defaults
	 	 	40	 
	SECTION 6.10. Trustee to Give Notice of Defaults Known to it, but May Withhold in
Certain Circumstances
	 	 	40	 
	SECTION 6.11. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee
	 	 	41	 
	SECTION 6.12. Waiver of Stay or Extension Laws
	 	 	41	 
	ARTICLE SEVEN CONCERNING THE TRUSTEE
	 	 	41	 
	SECTION 7.01. Certain Duties and Responsibilities of Trustee
	 	 	41	 
	SECTION 7.02. Certain Rights of Trustee
	 	 	42	 
	SECTION 7.03. Trustee Not Responsible for Recitals or Application of Proceeds
	 	 	43	 
	SECTION 7.04. Trustee May Own Securities or Coupons
	 	 	43	 
	SECTION 7.05. Moneys Received by Trustee to be Held in Trust
	 	 	43	 
	SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and Indemnity
	 	 	44	 
	SECTION 7.07. Right of Trustee to Rely on Officer’s Certificate Where No Other Evidence
Specifically Prescribed
	 	 	44	 
	SECTION 7.08. Disqualification; Conflicting Interest
	 	 	44	 
	SECTION 7.09. Requirements for Eligibility of Trustee
	 	 	50	 
	SECTION 7.10. Resignation and Removal of Trustee; Appointment of Successor
	 	 	50	 
	SECTION 7.11. Acceptance of Appointment by Successor Trustee
	 	 	51	 
	SECTION 7.12. Successor to Trustee by Merger, Consolidation or Succession to Business
	 	 	52	 
	SECTION 7.13. Preferential Collection of Claims Against Company
	 	 	52	 
	SECTION 7.14. Appointment of Authenticating Agent
	 	 	56	 
	ARTICLE EIGHT CONCERNING THE SECURITYHOLDERS
	 	 	58	 
	SECTION 8.01. Evidence of Action by Securityholders
	 	 	58	 
	SECTION 8.02. Proof of Execution of Instruments and of Holding of Securities
	 	 	58	 
	SECTION 8.03. Who May be Deemed Owners of Securities
	 	 	58	 






iv 









 






	 	 	 	 	 
	SECTION 8.04. Securities Owned by the Company or Controlled or Controlling Persons
Disregarded for Certain Purposes

	 	 	59	 
	SECTION 8.05. Instruments Executed by Securityholders Bind Future Holders
	 	 	59	 
	ARTICLE NINE SECURITYHOLDERS’ MEETINGS
	 	 	60	 
	SECTION 9.01. Purposes for Which Meetings May be Called
	 	 	60	 
	SECTION 9.02. Manner of Calling Meetings
	 	 	60	 
	SECTION 9.03. Call of Meeting by the Company or Securityholders
	 	 	60	 
	SECTION 9.04. Who May Attend and Vote at Meetings
	 	 	61	 
	SECTION 9.05. Regulations May be Made by Trustee; Conduct of the Meeting; Voting Rights –
Adjournment
	 	 	61	 
	SECTION 9.06. Manner of Voting at Meetings and Record to be Kept
	 	 	62	 
	SECTION 9.07. Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed
	 	 	62	 
	ARTICLE TEN SUPPLEMENTAL INDENTURES
	 	 	62	 
	SECTION 10.01. Purposes for Which Supplemental Indentures May be Entered Into Without
Consent of Securityholders
	 	 	62	 
	SECTION 10.02. Modification of Indenture with Consent of Holders of Securities
	 	 	63	 
	SECTION 10.03. Effect of Supplemental Indentures
	 	 	65	 
	SECTION 10.04. Securities May Bear Notation of Changes by Supplemental Indentures
	 	 	65	 
	ARTICLE ELEVEN DISCHARGE; DEFEASANCE
	 	 	66	 
	SECTION 11.01. Satisfaction and Discharge of Indenture
	 	 	66	 
	SECTION 11.02. Application by Trustee of Funds Deposited for Payment of Securities
	 	 	69	 
	SECTION 11.03. Repayment of Moneys Held by Paying Agent
	 	 	69	 
	SECTION 11.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
	 	 	70	 
	SECTION 11.05. Indemnity for U.S. Government of Obligations
	 	 	70	 
	ARTICLE TWELVE IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	70	 
	SECTION 12.01. Incorporators, Stockholders, Officers and Directors of Company Exempt From
Individual Liability
	 	 	70	 
	ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS
	 	 	71	 
	SECTION 13.01. Successors and Assigns of the Company Bound by Indenture
	 	 	71	 
	SECTION 13.02. Notices; Effectiveness
	 	 	71	 






v 









 






	 	 	 	 	 
	SECTION 13.03. Compliance Certificates and Opinions
	 	 	72	 
	SECTION 13.04. Days on Which Payment to be Made, Notice Given or Other Action Taken
	 	 	73	 
	SECTION 13.05. Provisions Required by Trust Indenture Act to Control
	 	 	73	 
	SECTION 13.06. Governing Law
	 	 	73	 
	SECTION 13.07. Effect of Headings
	 	 	73	 
	SECTION 13.08. Securities in a Foreign Currency or in ECU
	 	 	73	 
	SECTION 13.09. Judgment Currency
	 	 	74	 
	SECTION 13.10. Provisions of the Indenture and Securities for the Sole Benefit
of the Parties and the Securityholders
	 	 	74	 
	SECTION 13.11. Indenture May be Executed in Counterparts
	 	 	74	 






vi 









 





     THIS INDENTURE, dated as of                     , 2007, between TRANSMETA CORPORATION, a Delaware
corporation (the “Company”), and U.S. BANK, NATIONAL ASSOCIATION, a national banking association
duly organized and existing under the laws of the United States, as trustee (the “Trustee”).



WITNESSETH:




     WHEREAS, the Company has duly authorized the issuance, sale, execution and delivery, from time
to time, of its unsecured evidences of indebtedness (hereinafter referred to as the “Securities”),
without limit as to principal amount, issuable in one or more series, the amount and terms of each
such series to be determined as hereinafter provided; and, to provide the terms and conditions upon
which the Securities are to be issued, authenticated and delivered, the Company has duly authorized
the execution of this Indenture; and



     WHEREAS, all acts and things necessary to make the Securities, when executed by the Company
and authenticated and delivered by the Trustee as in this Indenture provided, the valid, binding
and legal subordinated obligations of the Company, and to constitute this Indenture a valid
indenture and agreement according to its terms, have been done and performed, and the execution of
this Indenture and the issuance hereunder of the Securities have in all respects been duly
authorized;



     NOW, THEREFORE, THIS INDENTURE




WITNESSETH:




     That in order to declare the terms and conditions upon which the Securities are to be issued,
authenticated and delivered, and in consideration of the premises and of the purchase and
acceptance of the Securities by the Holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the
Securities or of any series thereof, as follows:



ARTICLE ONE




DEFINITIONS




     SECTION 1.01. Certain Terms Defined. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:



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




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




          (c) all accounting terms not otherwise defined herein shall have the meanings assigned to them
and all computations herein provided for shall be made, in accordance with generally accepted
accounting principles, and the term “U.S. generally accepted accounting principles” shall mean such
principles as they exist at the date of applicability thereof; and




 









 








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




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



     “Agent” means any Registrar, Paying Agent, transfer agent or Authenticating Agent.



     “Authenticating Agent” shall the meaning set forth in Section 7.14.



     “Authorized Newspaper” means a newspaper (which, in the case of The City of New York, will, if
practicable, be The Wall Street Journal (Eastern Edition) and in the case of London, will, if
practicable, be the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable be the Luxembourg Wort and published in an official language of the country of
publication customarily published at least once a day for at least five days in each calendar week
and of general circulation in The City of New York, London or Luxembourg, as applicable. If it
shall be impractical in the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication of such notice.



     “Board of Directors” shall mean the Board of Directors of the Company, or any duly authorized
committee of such Board of Directors.



     “Board Resolution” shall mean on or more resolutions of the Board of Directors of the Company
certified by the Secretary or by an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company and to be in full force and effect on the date of such
certification.



     “Business Day” means, with respect to any Security, a day that is not a day on which banking
institutions in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, are authorized or required by any applicable law or
regulation to be closed.



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



     “Company” shall mean Transmeta Corporation, a Delaware corporation, until a successor
corporation shall have become such pursuant to the applicable provisions hereof, and thereafter
“Company” shall mean such successor Company.



2









 





     “Company Order” means a written statement, request or order of the Company signed in its name
by the Chairman of the Board of Directors of the Company, the President or Chief Executive Officer,
any Vice President or the Treasurer of the Company.



     “covenant defeasance” shall have the meaning set forth in Section 11.01.



     “Coupon” means any interest coupon appertaining to an Unregistered Security.



     “Defaulted Interest” shall have the meaning set forth in Section 2.07.



     “Depository” shall mean, with respect to the Securities of any series issuable or issued in
whole or in part in the form of one or more Registered Global Securities, the Person designated as
Depository by the Company pursuant to Section 2.03 of this Indenture until a successor Depository
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter the
term “Depository” shall mean or include each Person who is then a Depository hereunder, and if at
any time there is more than one such Person, “Depository” as used with respect to the Securities of
any such series shall mean the Depository with respect to the Securities of that series.



     “ECU” means the European Currency Unit as defined and revised from time to time by the
European Monetary System of the European Community and/or Euros.



     “Euro” or “euro” means the currency adopted by those countries participating in the third
stage of the European Monetary Union.



     “Event of Default” with respect to Securities of any series shall mean any event specified as
such in Section 6.01 and any other event as may be established with respect to the securities of
such series as permitted by Section 2.03. An Event of Default shall “exist” if an Event of Default
shall have occurred and be continuing.



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



     “Foreign Currency” means a currency issued by the government of a country other than the
United States of America.



     “Holder,” “Holder of Securities,” “Securityholder” or any other similar term means (a) in the
case of any Registered Security, the person in whose name such Security is registered in the
Register kept by the Company for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining thereto,
as the case may be.



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



     “IRS” means the Internal Revenue Service of the United States Department of the Treasury, or
any successor entity.



     “Judgment Currency” has the meaning set forth in Section 13.09.



3









 





     “Officer’s Certificate” shall mean a certificate signed by the Chairman of the Board of
Directors of the Company, any Vice–Chairman of the Board of Directors of the Company, the President
or Chief Executive Officer or any Vice–President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company. Each such certificate shall include the
statements provided for in Section 13.03, if and to the extent required by the provisions of such
Section.



     “Opinion of Counsel” shall mean a written opinion of legal counsel who may be an employee of
the Company or other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.03, if and to the extent required by the provisions of such
Section.



     “Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



     “Original Issue Discount Security” shall mean (a) any Security which provides for an amount
less than the principal amount thereof to be due and payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.01 or (b) any other Security which for United States
Federal income tax purposes would be considered an original issue discount security.



     “Outstanding” when used with reference to Securities shall, subject to the provisions of
Section 8.04, mean, as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:



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




          (b) Securities, or portions thereof, for whose payment or redemption moneys or U.S. Government
Obligations (as provided in Section 11.01) in the necessary amount have been theretofore deposited
with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside,
segregated and held in trust by the Company (if the Company shall act as its own Paying Agent) in
trust for the Holders of such Securities, provided that if such Securities or portions thereof, are
to be redeemed prior to the Stated Maturity thereof, notice of such redemption has been duly given
as provided in Article Three hereof, or provision therefor satisfactory to the Trustee has been
made;




          (c) Securities in exchange for or in lieu of which other Securities shall have been
authenticated and delivered under this Indenture; and




          (d) Securities alleged to have been destroyed, lost or stolen which have been paid as provided
in Section 2.07 hereof.




     In determining whether the Holders of the requisite principal amount of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due



4









 







and payable as of the date of such determination as if a declaration of acceleration of the
maturity thereof pursuant to Section 6.01 had been made.



     “Paying Agent” means any Person authorized by the Company to pay the principal of and any
interest and premium, if any, on any Securities on behalf of the Company.



     “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.



     “Person” shall mean an individual, a corporation, a partnership, a limited liability company,
a joint venture, an association, a joint stock company, a trust, an unincorporated organization, or
a government or any agency, authority or political subdivision thereof.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 2.04 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



     “principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any,” provided, however, that such inclusion
of premium, if any, shall under no circumstances result in the double counting of such premium for
the purpose of any calculation required hereunder.



     “Principal Office of the Trustee” shall mean the office of the Trustee at which at any
particular time the trust created by this Indenture shall be administered, except that with respect
to presentation of Securities for payment such term shall mean any office or agency of the Trustee
at which at any particular time its corporate trust services business shall be conducted. The
present address of the Principal Office of the Trustee is administered is 663 West Fifth Street,
24th Floor, Los Angeles, CA 90071, Attention: Corporate Trust Services.



     “Record Date” for the interest payable on any Interest Payment Date on any series of
Securities shall mean the date specified as such in the Securities of such series.



     “Register” shall mean the books for the registration and transfer of Securities which books
are kept by the Trustee pursuant to Section 2.08.



     “Registered Global Security” means a Security evidencing all or a portion of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.12,
and bearing the legend prescribed in Section 2.12 and any other legend required by the Depositary
for such series.



     “Registered Security” means any Security registered on the Register of the Company.



     “Required Currency” shall have the meaning set forth in Section 13.09.



5









 






     “Responsible Officer” when used with respect to the Trustee shall mean any officer in the
Principal Office of the Trustee or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer of the Trustee to whom such
matter is referred because of such Person’s knowledge of and familiarity with the particular
subject.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 2.07.



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



     “Indenture” shall mean this instrument as originally executed, or as it may from time to time
be supplemented, modified or amended, as provided herein, and shall include the form and terms of
particular series of Securities established in accordance with the provisions of Sections 2.03 and
2.04.



     “Security” or “Securities” shall mean any security or securities of the Company without regard
to series, authenticated and delivered under this Indenture.



     “Supplemental Indenture” shall mean an indenture supplemental hereto as such Supplemental
Indenture may be originally executed, or as it may from time to time be supplemented, modified or
amended, as provided herein and therein.



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



     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended as of the date of
this Indenture.



     “United States Dollars” shall mean the lawful currency of the United States of America.



     “Unregistered Security” means any Security other than a Registered Security.



     “U.S. Government Obligations” shall have the meaning set forth in Section 11.01.



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






6









 






ARTICLE TWO



ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,



TRANSFER AND EXCHANGE OF SECURITIES




     SECTION 2.01. Form of Securities and Trustee’s Certificate of Authentication. The
Securities of each series and the Coupons, if any, to be attached thereto shall be substantially in
such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or
more Board Resolutions and as set forth in an Officer’s Certificate or Supplemental Indenture, in
each case with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements thereon as the Board of Directors
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 stock exchange on which the Securities of such series may be listed, or
to conform to usage all as may be determined by the officers executing such Securities and Coupons,
if any, as evidenced by their execution of such Securities and Coupons.



     The definitive Securities and Coupons, if any, and each registered Global Security may be
printed, lithographed or fully or partly engraved or produced in any other manner, all as
determined by the officers executing such Securities and Coupons, if any, as evidenced by their
execution thereof.



     SECTION 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication on all Securities shall be in substantially the following form:



TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 	 	 
	 	 	U.S. Bank National Association, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Authorized Signatory	 	 






     SECTION 2.03. Amount Unlimited, Issuable in Series.



     (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is not limited. The Securities may be issued in one or more series.



     The following terms and provisions of each series of Securities shall be established in or
pursuant to one or more Board Resolutions and set forth in an Officer’s Certificate detailing such
establishment or established in one or more Supplemental Indentures prior to the issuance of
Securities of any series:



          (1) the designation of the series of Securities of the series (which shall distinguish the
Securities of such series from all other series of Securities) and which may be part of a series of
Securities previously issued;




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          (2) any limit upon the aggregate principal amount of the particular series of Securities which
may be executed, authenticated and delivered under this Indenture; provided, however, that nothing
contained in this Section 2.03 or elsewhere in this Indenture or in the Securities or in an
Officer’s Certificate or in a Supplemental Indenture is intended to or shall limit execution by the
Company or authentication and delivery by the Trustee of Securities under the circumstances
contemplated by Sections 2.08, 2.09, 2.11, 3.03 and 10.04;




          (3) if other than United States Dollars, the coin, currency or currencies or composite
currency in which principal of and interest and any premium on such series of Securities shall be
payable (including, but not limited to, any Foreign Currency or ECU);




          (4) the Stated Maturity for payment of principal of such series of Securities and any sinking
fund or analogous provisions;




          (5) the rate or rates at which such series of Securities shall bear interest, if any, the date
or dates from which such interest shall accrue, on which such interest shall be payable, the terms
and conditions of any deferral of interest and the additional interest, if any, thereon, the right,
if any, of the Company to extend the time for payment of interest, the terms and duration of such
extension rights and (in the case of Registered Securities) the date or dates on which a record
shall be taken for the determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;




          (6) the place or places where the principal of and any interest on Securities of any series
shall be payable, where such Securities may be surrendered for registration of transfer, where such
Securities may be surrendered for exchange and where notice and demands to or upon the Company, in
respect of such Securities, and this Indenture may be served, if other than as provided in Section
4.03;




          (7) the right, if any, of the Company to redeem Securities, in whole or in part, at its option
and the period or periods within which, the price or prices at which and any terms and conditions
upon which Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;




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




          (9) if other than denominations of $1,000 or [Euro] 1,000, as the case may be, and any
integral multiple thereof, in the case of Registered Securities, or $1,000 and $5,000 or [Euro]
1,000 and [Euro] 5,000 in the case of Unregistered Securities, the denominations in which such
series of Securities shall be issuable;




          (10) the percentage of the principal amount at which the Securities will be issued, and, if
other than the principal amount thereof, the portion of the principal amount of such series of
Securities which shall be payable upon declaration of acceleration of the maturity thereof pursuant
to Section 6.01;




8









 








          (11) if other than the coin, currency or currencies in which the Securities of the series are
denominated, the coin, currency or currencies in which payment of the principal of or interest on
the Securities of such series shall be payable, including composite currencies or currency units;




          (12) if the principal or interest on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and the terms and conditions upon
which, such election may be made;




          (13) if the amount of payments or principal of and interest on the Securities of the series
may be determined with reference to an index or formula based on a coin, currency, composite
currency or currency unit other than that in which the Securities of the series are denominated,
the manner in which such amounts shall be determined;




          (14) whether the Securities of the series will be issuable as Registered Securities (and if
so, whether such Securities will be issuable as Registered Global Securities, the Depository for
such Registered Global Securities and any additional terms and conditions relating to such
Registered Global Securities not set forth in this Indenture) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions applicable to the offer,
sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than
as provided in Section 2.08, the terms upon which Unregistered Securities of any series may be
exchanged for Registered Securities of such series and vice versa;




          (15) whether and under what circumstances the Company will pay additional amounts on the
Securities of the series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem the Securities of the series rather than pay such additional amounts;




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




          (17) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars of any other agents with respect to the Securities of such series;




          (18) any additional events of default or covenants with respect to the Securities of a
particular series not set forth herein;




          (19) the terms and conditions, if any, upon which any Securities of such series may or shall
be converted or exchanged into other instruments or other forms of property of the Company or its
subsidiaries, including without limitation, securities of another Person held by the Company or its
Affiliates, and if so the terms thereof; and




9









 








          (20) any other terms of such series of Securities (which terms shall not be inconsistent with
the provisions of this Indenture).




     (b) All Securities of any one series and Coupons, if any, appertaining thereto shall be
substantially identical except that any series may have serial maturities and different interest
rates for different maturities and except in the case of Registered Securities as to denomination
and the differences herein specified between Registered Global Securities and Registered Securities
issued in definitive form and except as may otherwise be provided in or pursuant to such Board
Resolution and set forth in such Officer’s Certificate or Supplemental Indenture relating to such
series of Securities. All Securities of any one series need not be issued at the same time, and,
unless otherwise provided in the Officer’s Certificate or Supplemental Indenture relating to such
series, a series may be reopened for issuances of additional Securities of such series.



     SECTION 2.04. Authentication and Delivery of Securities; Supplemental Indentures for
Secured Issues.



          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver any series of Securities having attached thereto appropriate Coupons, if any,
executed by the Company to the Trustee for authentication by it together with the applicable
documents referred to below in this Section 2.04, and the Trustee shall thereupon authenticate and
deliver said Securities (or if only a single Security, such Security) and Coupons, if any, to or
upon the written order of the Company, signed by an officer of the Company, without any further
corporate action. The maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Company Order and procedures. If provided for in such procedures, such Company
Order may authorize authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the
first request of the Company to the Trustee to authenticate Securities of such series) and (subject
to Section 7.01) shall be fully protected in relying upon, the following enumerated documents
unless and until such documents have been superseded or revoked:




                (1) a Company Order requesting such authentication and setting forth delivery instructions if
the Securities and Coupons, if any, are not to be delivered to the Company, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a) such Company Order may be
delivered by the Company to the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to a
Company Order or pursuant to procedures acceptable to the Trustee as may be specified from
time to time by a Company Order, (c) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such procedures, such
Company Order may authorize authentication and delivery pursuant to oral or electronic


10









 







instructions
from the Company or its duly authorized agent or agents, which instructions, if oral, shall be
promptly confirmed in writing;




          (2) any Board Resolution, Officer’s Certificate and/or executed Supplemental Indenture
referred to in Section 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities
and Coupons, if any, were established;




          (3) an Officer’s Certificate setting forth the form or forms and terms of the Securities and
Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any,
have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and




          (4) at the option of the Company, either one or more Opinions of Counsel, or a letter
addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to
the effect that:




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



               (b) in the case of an underwritten offering, the terms of the Securities have been duly
authorized and established in conformity with the provisions of this Indenture, and, in the case of
an offering that is not underwritten, certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer’s Certificate or a Supplemental Indenture in accordance
with this Indenture, and when such other terms as are to be established pursuant to procedures set
forth in a Company Order shall have been established, all such terms will have been duly authorized
by the Company and will have been established in conformity with the provisions of this Indenture;



               (c) this Indenture and such Securities, when executed and issued by the Company and
authenticated by the Trustee in accordance with the provisions of this Indenture and duly paid for
by the purchasers thereof, and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, except as any rights thereunder may be
limited by the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the rights of creditors generally;
the rules governing the availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a proceeding in
equity or at law; the effect of applicable court decisions invoking statutes or principles of
equity, which have held that certain covenants and provisions of agreements are unenforceable where
the breach of such covenants or provisions imposes restrictions or burdens upon a borrower, and it
cannot be demonstrated that the enforcement of such restrictions or burdens is necessary for the
protection of the creditor, or which have held that the creditor’s enforcement of such covenants or
provisions under the circumstances would have violated the creditor’s covenants of good faith and
fair dealing implied under California
law; and the effect of California statutes and rules of law which cannot be waived
prospectively by a borrower, and such counsel need express no opinion with regard to the
enforceability of Section 7.06 or of a judgment denominated in a currency other than United States
Dollars; and



11









 





               (d) the Company has complied with all applicable Federal laws and requirements in respect of
the execution and delivery of such Securities.



          (5) if the Securities are to be secured, a supplemental indenture conforming to the
requirements of Section 314 of the Trust Indenture Act and such other documents as may be required
by Section 314; and




          (6) if the Securities are to be convertible, a supplemental indenture conforming to the
requirements of Section 314 of the Trust Indenture Act and such other documents as may be required
by Section 314.




          In rendering such opinions, any counsel may qualify any opinions as to enforceability by
stating that such enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably
satisfactory to the Trustee, in which case the opinion shall state that such counsel believes he
and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public officials.




          The Trustee shall have the right to decline to authenticate and deliver any Securities under
this section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Company or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees shall determine that
such action would expose the Trustee to personal liability to existing Holders or would affect the
Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise.




     SECTION 2.05. Execution of Securities. The Securities and each Coupon appertaining
thereto, if any, shall be executed manually or in facsimile, by any two of the Chairman of the
Board, Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant
Secretary, the Chief Financial officer, the Treasurer or any Assistant Treasurer of the Company
under its corporate seal (except in the case of Coupons), which may be affixed thereto or printed,
engraved or otherwise reproduced thereon, by facsimile or otherwise. Only such Securities or
Coupons, if any, as shall bear thereon a certificate of authentication substantially in the form
recited herein, executed by the Trustee manually by an authorized officer, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate of
authentication of the Trustee upon any Security or Coupon, if any, executed by the Company shall be
conclusive evidence that the Security or Coupon so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
Typographical or other errors or defects in the seal or facsimile
signature on any Security or in the text thereof shall not affect the validity or
enforceability of such Security if it has been duly authenticated and delivered by the Trustee.



     In case any officer of the Company who shall have signed any of the Securities or Coupons, if
any, (manually or in facsimile) shall cease to be such officer before the Securities or



12









 







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



     SECTION 2.06. Certificate of Authentication. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by
the Trustee by the manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon shall be entitled
to the benefits of this Indenture or shall be valid and obligatory for any purpose until the
certificate of authentication on the Security to which such Coupon appertains shall have been duly
executed by the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Company 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.



     SECTION 2.07. Denominations; Payment of Interest on Securities.



     (a) The Securities of each series may be issued as Registered Securities or Unregistered
Securities in denominations all as shall be specified as contemplated by Section 2.03. In the
absence of such provisions with respect to the Registered Securities of any series, the Securities
of such series (other than any Registered Global Securities) shall be issued in denominations of
$1,000 (or [Euro] 1,000, as applicable) and any integral multiple thereof. If denominations of
Unregistered Securities of any series are not so established, such Securities shall be issuable in
denominations of $1,000 and $5,000 (or [Euro] 1,000 and [Euro] 5,000). The Securities of each
series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with
such plan as the officers of the Company executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.



     (b) If the Securities of any series shall bear interest, each Security of such series shall
bear interest from the applicable date at the rate per annum specified in the Officer’s Certificate
or Supplemental Indenture with respect to such series of Securities. Unless otherwise specified in
the Officer’s Certificate or Supplemental Indenture with respect to the Securities of any series,
interest on the Securities of such series shall be computed on the basis of a 360–day year of
twelve 30–day months. Such interest shall be payable on the Interest Payment Dates specified in
the Officer’s Certificate or Supplemental Indenture with respect to such series of Securities. The
Person in whose name any Security (or one or more Predecessor Securities) is registered at the
close of business on the applicable Record Date for the series of which such Security is a part
shall be entitled to receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange thereof
subsequent to such Record Date and prior to such Interest Payment Date unless such Security
shall have been called for redemption on a Redemption Date which is subsequent to such Record Date
and prior to such Interest Payment Date or unless the Company shall default in the payment of
interest due on such Interest Payment Date on any Security of such series.



13









 





     Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the registered Holder on the relevant Record Date solely by virtue
of such Holder having been such Holder; and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:



     (1) The Company may elect to make payment of any Defaulted Interest on the Securities of any
series 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 Security and the date of
the proposed payment (which date shall be such as will enable the Trustee to comply with the next
sentence hereof), 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 subsection provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall be not 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 Holder of a Security of such series at
such Holder’s address as it appears in the Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series are registered on such Special Record Date and shall no
longer be payable pursuant to the following subsection (2).



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



     Interest on Securities of any series that bear interest may be paid by mailing a check to the
address of the person entitled thereto as such address shall appear in the Register.



     Subject to the foregoing provisions of this Section 2.07, each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry all the
rights to interest accrued and unpaid, and to accrue, which were carried by such other
Security and each such Security shall bear interest from such date, such that neither gain nor
loss in interest shall result from such transfer, exchange or substitution.



     SECTION 2.08. Registration, Transfer and Exchange of Securities. Except as
specifically otherwise provided herein with respect to Registered Global Securities, Securities of
any series may be exchanged for a like aggregate principal amount of Securities of the same



14









 







series
of other authorized denominations. Securities to be exchanged shall be surrendered at the offices
or agencies to be maintained in accordance with the provisions of Section 4.03 and the Company
shall execute the Security or Securities, and the Trustee shall authenticate and deliver in
exchange therefor the Security or Securities which the Securityholder making the exchange shall be
entitled to receive.



     The Company shall cause the Trustee to keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Trustee in accordance with the provisions of Section
4.03 with respect to the Securities of each series, the Register in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration of the
Registered Securities of such series and the transfer of Registered Securities of such series as in
this Article provided. The Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times the Register shall
be open for inspection by the Trustee and any registrar of the Securities of such series other than
the Trustee. Upon due presentment for transfer of any Security of any series at the offices or
agencies of the Company to be maintained in accordance with Section 4.03 with respect to the
Registered Securities of such series, the Company shall execute a new Security and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a new Security or
Registered Securities of the same series for a like aggregate principal amount of authorized
denominations. Notwithstanding any other provisions of this Section 2.08, unless and until it is
exchanged in whole or in part for Registered Securities in definitive form, a Global Security
representing all or a portion of the Registered Securities of a series may not be transferred
except as a whole by the Depository for such series to a nominee of such Depository or by a nominee
of such Depository to such Depository or another nominee of such Depository or by such Depository
or any such nominee to a successor Depository for such series or a nominee of such successor
Depository.



     Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable
by delivery.



     At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 4.03 and
upon payment, if the Company shall so require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Securities
of any series may be exchanged for Registered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with Section 4.03, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons
in default thereto appertaining, and upon payment, if the Company shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more than one



15









 







authorized
denomination, except as otherwise established pursuant to Section 2.03, such Unregistered
Securities may be exchanged for Unregistered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.03, with, in the case of Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of such series unless (1)
otherwise specified pursuant to Section 2.03 and (2) the Company has delivered to the Trustee an
Opinion of Counsel that (x) the Company has received from the IRS a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income tax law, in either
case to the effect that the inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no United States federal income tax effect adverse to the
Company or to any Holder. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive. All Securities and Coupons, if any, surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly cancelled and disposed of
by the Trustee, and the Trustee shall deliver a certificate of disposition thereof to the Company.



     All Registered Securities of any series presented or surrendered for exchange, transfer,
redemption, conversion or payment shall, if so required by the Company or any registrar of the
Securities of such series, be accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Company and such registrar, duly executed by the registered Holder or by
such Person’s attorney duly authorized in writing.



     No service charge shall be made for any exchange or registration of transfer of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto.



     The Company shall not be required to exchange or transfer (a) any Securities of any series
during a period beginning at the opening of business 15 days before the day of the first
publication or the mailing (if there is no publication) of a notice of redemption of Securities of
such series and ending at the close of business on the day of such publication or mailing or (b)
any Securities called or selected for redemption in whole or in part, except, in the case of
Securities called for redemption in part, the portion thereof not so called for redemption in whole
or in part or during a period beginning at the opening of business on any Record Date for such
series and ending at the close of business on the relevant Interest Payment Date therefor.



     SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security or any Coupon appertaining to any Security shall be mutilated,
defaced, destroyed, lost or stolen, the Company in its discretion may execute and, upon the written
request of any officer of the Company, the Trustee shall authenticate and
delivery, a new Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or
substitution for the



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Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership thereof, and in the case
of mutilation or defacement shall surrender the Security and related Coupons to the Trustee or such
agent.



     Upon the issuance of any substitute Security or Coupon, 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) or its agent
connected therewith. In case any Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may instead of issuing a substitute Security, pay or authorize the payment of
the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to the Company and to
the Trustee and any agent of the Company or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee and any agent of the Company or the
Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or
Coupons and of the ownership thereof.



     Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and Coupons and shall preclude any and all other rights or remedies
notwithstanding any law or statue existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.



     SECTION 2.10. Cancellation and Destruction of Surrendered Securities. All Securities
and Coupons surrendered for payment, redemption, transfer, conversion or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if any, shall, if surrendered to the
Company, the Trustee or any agent of the Company or of the Trustee, be delivered to the Trustee,
and the same, together with Securities surrendered to the Trustee for
cancellation, shall be canceled by it and thereafter disposed of by it as directed by the
Company, and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall destroy canceled Securities and
Coupons and deliver a certificate of destruction thereof to the Company unless by an Officer’s
Certificate of the Company, the Company shall direct that canceled Securities be returned to it. If
the Company



17









 







shall purchase or otherwise acquire any of the Securities and Coupons, however, such
purchase or acquisition shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities or Coupons unless and until the Company, at its option
shall deliver or surrender the same to the Trustee for cancellation.



     SECTION 2.11. Temporary Securities. Pending the preparation of definitive Securities
of any series, the Company may execute and the Trustee shall authenticate and deliver temporary
Securities of such series which are printed, lithographed, typewritten or otherwise produced, in
each case satisfactory to the Trustee. Temporary Securities of any series shall be issuable as
Registered Securities without coupons, or as Unregistered Securities with or without coupons
attached thereto of any authorized denomination, and substantially in the form of the definitive
Securities of such series but with such appropriate omissions, insertions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced by their execution
of such Securities. Every such temporary Security shall be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect, as the definitive
Securities. If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities of such series shall be exchangeable for definitive Securities upon surrender of the
temporary Securities without charge to the Holder at the offices or agencies to be maintained by
the Trustee as provided in Section 4.03 with respect to the Securities of such series and in the
case of Unregistered Securities, at any agency maintained by the Company for such purpose as
specified pursuant to Section 2.03. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange for
such temporary Securities an equal aggregate principal amount of definitive Securities of such
series and in the case of Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to
the benefits of this Indenture and interest thereon, when and as payable, shall be paid to the
registered owners thereof. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.03 (including any provision that Unregistered Securities of
such series initially be issued in the form of a single global Unregistered Security to be
delivered to a depositary or agency located outside the United States and the procedures pursuant
to which definitive or global Unregistered Securities of such series would be issued in exchange
for such temporary global Unregistered Security).



     SECTION 2.12.  Securities in Global Form; Depositories. (a) Each Registered Global
Security shall: (i) represent and be denominated in an aggregate amount equal to the aggregate
principal amount of the Securities of the series to be represented by such Registered Global
Security, (ii) be registered in the name of either the Depository for such Registered Global
Security or the nominee of such Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository’s written instruction and (iv) bear a legend substantially to the
following effect: “Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Registered Global Security may not be transferred except
as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any nominee to a
successor Depository or a nominee of any successor Depository.” The notation of the record owner’s
interest in such Registered Global Security upon the original issuance thereof shall be deemed to
be delivery in



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connection with the original issuance of each beneficial owner’s interest in such
Registered Global Security. Without limiting the foregoing, the Company and the Trustee shall have
no responsibility, obligation or liability with respect to: (x) the maintenance, review or accuracy
of the records of the Depository or of any of its participating organizations with respect to any
ownership interest in or payments with respect to such Registered Global Security, (y) any
communication with or delivery of any notice (including notices of redemption) with respect to the
series of Securities represented by the Registered Global Security to any Person having any
ownership interest in such Registered Global Security or to any of the Depository’s participating
organizations or (z) any payment made on account of any beneficial ownership interest in such
Registered Global Security.



     (b) If any Security of a series is issuable in the form of a Registered Global Security or
Securities, each such Registered Global Security may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities of such series represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Registered Global Security
to reflect the amount of Outstanding Securities of a series represented thereby shall be made by
the Trustee and in such manner as shall be specified on such Registered Global Security. Any
instructions by the Company with respect to a Registered Global Security, after its initial
issuance, shall be in writing but need not comply with Section 13.03 of this Indenture.



     (c) Each Depository designated pursuant to the provisions of Section 2.03 of this Indenture
for a Registered Global Security must, at the time of its designation and at all times while it
serves as a depositary, be a clearing agency registered under the Exchange Act, and any other
applicable statute or regulation. If at any time the Depository for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depository for the Securities of
such series or if at any time the Depository for the Securities of such series shall no longer be
eligible under this Section 2.12, the Company shall appoint a successor Depository with respect to
the Securities of such series. If a successor Depository for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice or learns of such
ineligibility, the Company shall execute and the Company shall direct the Trustee to authenticate
and deliver definitive Securities of such series in authorized denominations in exchange for the
Registered Global Security or Securities. Upon receipt of such direction, the Trustee shall
thereupon authenticate and deliver the definitive Securities of such series in the same aggregate
principal amount as the Registered Global Security or Securities representing such series in
exchange for such Registered Global Security or Securities, in accordance with the provisions of
subsection (e) of this Section 2.12, without any further corporate action by the Company.



     (d) The Company may at any time and in its sole discretion determine that the Registered
Securities of any series issued in the form of one or more Registered Global
Securities shall no longer be represented by such Registered Global Security or Securities.
In such event, the Company will execute and upon receipt of a written order from the Company, the
Trustee shall thereupon authenticate and deliver Securities of such series in definitive form and
in authorized denominations in an aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities representing such series in exchange for such



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Registered
Global Security or Securities, in accordance with the provisions of subsection (e) of this Section
2.12 without any further corporate action by the Company.




     (e) Upon any exchange hereunder of the Registered Global Security or Securities for Securities
in definitive form, such Registered Global Security or Securities shall be canceled by the Trustee.
Registered Securities issued hereunder in exchange for the Registered Global Security or
Securities shall be registered in such names and in such authorized denominations as the Depository
for such Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such definitive
Securities in exchange for the Registered Global Security or Securities to the persons in whose
name such definitive Securities have been registered in accordance with the directions of the
Depository.



     (f) Any time the Registered Securities of any series are not in the form of Registered Global
Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with
a reasonable supply of certified Registered Securities without the legend required by this Section
2.12 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated
and delivered pursuant to the terms of this Indenture.



     If established by the Company pursuant to Section 2.03 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without service charge,




     (i) to the Person specified by such Depositary new Registered Securities of the same
series and tenor, of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Person’s beneficial interest in
the Registered Global Security; and




     (ii) to such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Registered Global
Security and the aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.



     Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.12 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons
in whose names such Securities are so registered.



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



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     Notwithstanding anything herein or in the forms or terms of any Securities to the contrary,
none of the Company, the Trustee or any agent of the Company or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Company (such as, for example, the inability of the
Company to deduct from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United States Federal income tax
laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an
Opinion of Counsel in determining such result.



     SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
and “CINS” numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS
numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and
no representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.



     SECTION 2.14. Series May Include Tranches. A series of Securities may include one or
more tranches (each a “tranche”) of Securities, including Securities issued in a Periodic Offering.
The Securities of different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within each such tranche
shall have identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections 2.05 (other than
the fourth paragraph thereof) through 2.12, 3.01 through 3.05, 4.03, 6.01 through 6.12, 10.02 and
11.01 through 11.05, if any series of Securities includes more than one tranche, all provisions of
such sections applicable to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally designated a series
unless otherwise provided with respect to such series or tranche pursuant to Section 2.03. In
particular, and without limiting the scope of the next preceding sentence, any of the provisions of
such sections which provide for or permit action to be taken with respect to a series of Securities
shall also be deemed to provide for and permit such action to be taken instead only with respect to
Securities of one or more tranches within that series (and such provisions shall be deemed
satisfied thereby), even if no comparable action is taken with respect to Securities in the
remaining tranches of that series.



ARTICLE THREE




REDEMPTION OF SECURITIES AND SINKING FUNDS




     SECTION 3.01. Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their Stated Maturity or to
any sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.



     SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Registered Securities of any series to be redeemed as a whole or in part at the option
of the Company shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as they shall appear upon the



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Register. Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Company, the Trustee shall make such information available to the
Company for such purpose). Notice of redemption to all other Holders of Unregistered Securities
shall be published in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
in an Authorized Newspaper in London (and, if required by Section 4.09, in an Authorized Newspaper
in Luxembourg), in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption.
Any notice which is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the redemption of such
Security of such series.



     The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will cease to accrue.
In case any Security of a series is to be redeemed in part only the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be issued.



     The notice of redemption of Securities of any series to be redeemed at the option of the
Company shall be given by the Company or, at the Company’s request delivered to the Trustee at
least five Business Days prior to the intended date of mailing to the Holders, by the Trustee in
the name and at the expense of the Company.



     On or before the redemption date specified in the notice of redemption given as provided in
this Section, the Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and holder in trust as provided
in Section 4.05) an amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. The Company will deliver to the Trustee at least 70
days prior to the date fixed for redemption, or such shorter period as shall be
acceptable to the Trustee, an Officer’s Certificate stating the aggregate principal amount of
Securities to be redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section, an Officer’s
Certificate stating that such restriction has been complied with.



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     If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall deem appropriate and fair, in its sole discretion, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal
to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Company in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.



     SECTION 3.03. Payment of Securities Called for Redemption. If notice of redemption
has been given as above provided, the Securities or portions of Securities 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 on and after
said date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 7.05 and 11.04, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining thereto maturing after
the date fixed for redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with interest accrued thereon
to the date fixed for redemption; provided, that payment of interest becoming due on or prior to
the date fixed for redemption shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holder of such Registered Securities registered as such on the
relevant record date, subject to the terms and provisions of Section 2.03 and 2.07 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.



     If any Security with Coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.



     Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Company, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.



23









 





     SECTION 3.04. Exclusion of Certain Securities From Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or
(b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company.



     SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum amount of any
sinking fund payment provided for by the terms of the 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 the Securities of any series herein referred to as an “optional sinking fund
payment.” The date on which a sinking fund payment is to be made is herein referred to as the
“sinking fund payment date.”



     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Company and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Company through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee at the sinking
fund redemption price specified in such Securities.



     On or before the 60th day next preceding each sinking fund payment date for any
series, the Company will deliver to the Trustee an Officer’s Certificate (which need not contain
the statements required by Section 13.03) (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities
of such series and the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Company intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so, specifying the amount of
such optional sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be credited and required to
be delivered to the Trustee in order for the Company to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer’s Certificate shall be irrevocable and upon
its receipt by the Trustee the Company shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any such
60th day, to deliver such Officer’s Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company



24









 







(i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or a lesser sum in United States Dollars (or the equivalent thereof in any Foreign Currency or
ECU) if the Company shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Company makes no such request then it shall be carried
over until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or ECU) is
available. The Trustee shall select, in the manner provided in Section 3.02, for redemption on
such sinking fund payment date a sufficient principal amount of Securities of such series to absorb
said cash, as nearly as may be, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity
specifically identified in such Officer’s Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. The Trustee, in the
name and at the expense of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.02 (and with the effect provided in Section 3.03)
for the redemption of Securities of such series in part at the option of the Company. The amount
of any sinking fund payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the Stated Maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of
such series at its Stated Maturity.



     On or before each sinking fund payment date, the Company shall pay to the Trustee in cash or
shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such



25









 







Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default be deemed to have been collected under Article
5 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.09 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.



ARTICLE FOUR




PARTICULAR COVENANTS OF THE COMPANY




     SECTION 4.01. Payment of Principal of and Interest on Securities. The Company
covenants that it will duly and punctually pay or cause to be paid the principal of and any
interest and premium on each of the Securities in accordance with the terms of the Securities and
in the Coupons, if any, appertaining thereto and this Indenture. Except with respect to any
Registered Global Securities, if the Securities of any series bear interest, each installment of
interest on the Securities of such series may, at the option of the Company, be paid by mailing a
check or checks for such interest payable to the Person entitled thereto pursuant to Section 2.07
to the address of such Person as it appears on the Register of such series on the applicable Record
Date for such interest payment. The interest on Securities with Coupons attached (together with
any additional amounts payable pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments as are evidenced
thereby as they severally mature. If any temporary Unregistered Security provides that interest
thereon may be paid while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons attached thereto,
if any, only upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established pursuant to Section
2.03. The interest, if any, on Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon the written order of the
Holders thereof and, at the option of the Company, may be paid by wire transfer or by mailing
checks for such interest payable to or upon the written order of such Holders at their last
addresses as they appear on the Register of the Company.



     SECTION 4.02. Corporate Existence of the Company; Consolidation, Merger, Sale or
Transfer. The Company covenants that so long as any of the Securities are Outstanding, it will
maintain its existence, will not dissolve, sell or otherwise dispose of all or substantially all of
its assets and will not consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may, without
violating the covenants in this Section 4.02 contained, consolidate with or merge into another
entity or permit one or more other entities to consolidate with or merge into it, or sell or
otherwise transfer to another entity all or substantially all of its assets as an entirety and
thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, (i)
shall be organized and existing



26









 







under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations of the Company
hereunder and (iii) is not, after such transaction, otherwise in default under any provisions
hereof.



     SECTION 4.03. Maintenance of Offices or Agencies for Transfer, Registration, Exchange and
Payment of Securities. So long as any of the Securities shall remain Outstanding, the Company
covenants that it will cause the Trustee to maintain an office or agency in either The City of New
York, State of New York, or the City and County of Los Angeles, State of California, where the
Securities may be presented for registration, exchange and transfer as in this Indenture provided,
and where notices and demands to or upon the Trustee in respect of the Securities or of this
Indenture may be served, and where the Securities may be presented for payment. In case the
Trustee shall fail to maintain any such office or agency, presentations and demands may be made and
notices may be served at the principal office of the Company.



     The Company will maintain one or more agencies in a city or cities located outside the United
States (including any city in which such an agency is required to be maintained under the rules of
any stock exchange on which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Company within the United States nor will any
payment be made by transfer to an account in, or by mail to an address in, the United States
unless, pursuant to applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the foregoing, if full
payment in United States Dollars at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or Coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions, payments in United States
Dollars of Unregistered Securities of any series and coupons appertaining thereto which are payable
in United States Dollars may be made at an agency of the Company maintained in the City of New
York.



     The Company will maintain in the Borough of Manhattan, The City of New York, an office or
agency where notices and demands to or upon the Company in respect of the Securities of any series,
the Coupons appertaining thereto or this Indenture may be served.



     The Company will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. In case the Company shall fail to maintain any
agency required by this Section to be located in the Borough of Manhattan, The City of New York or
the City and County of Los Angeles, or shall fail to give such notice of the location or for any
change in the location of any of the above agencies, presentations and demands may be made and
notices may be served at the Principal Office of the Trustee.



     The Company may from time to time designate one or more additional offices or agencies where
the Securities of a series and any Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.04 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Company may from time to time
rescind any such designation, as the Company may deem desirable or expedient; provided, that no
such designation or rescission shall in any manner relieve the



27









 







Company of its obligations to
maintain the agencies provided for in this Section. The Company shall give to the Trustee prompt
written notice of any such designation or rescission thereof.



     SECTION 4.04. Appointment to Fill a Vacancy in the Office of Trustee. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, covenants that it will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee with respect to the Outstanding Securities.



     SECTION 4.05. Duties of Paying Agent. (a) If the Company shall appoint a Paying
Agent other than the Trustee with respect to Securities of any series, it will cause 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 4.05 and Section 11.04,



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




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




          (3) that it will at any time during the continuance of any Event of Default, upon the written
request of the Trustee, deliver to the Trustee all sums so held in trust by it.




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



     (c) If the Company shall act as its own Paying Agent with respect to the Securities of any
series, it will, on or before each due date of the principal of or interest on the Securities of
such series, set aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Company will promptly notify the Trustee of any failure
to take such action.



     (d) Anything in this Section 4.05 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture with respect to
one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for such series by it, or any Paying Agent hereunder, as
required by this Section 4.05, and such sums are to be held by the Trustee upon the trust herein
contained.



28









 





     SECTION 4.06. Notice of Default. The Company covenants that, as soon as is
practicable, the Company will furnish the Trustee notice of any event which is an Event of Default
or which with the giving of notice or the passage of time or both would constitute an Event of
Default which has occurred and is continuing on the date of such notice, which notice shall set
forth the nature of such event and the action which the Company proposes to take with respect
thereto.



     SECTION 4.07. Maintenance of Properties. The Company will cause all properties used
in or useful in the conduct of its business to be maintained and kept in good condition, repair,
and working order and supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all time except to the extent that the Company may be
prevented from so doing by circumstances beyond its control; provided, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of
the Company desirable in the conduct of the business of the Company and not disadvantageous in any
material respect to the Securityholders.



     SECTION 4.08. Payment of Taxes and Other Claims. The Company will pay or discharge
or cause to be paid or discharged, before the same shall become delinquent: (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or upon the income, profits
or property of the Company; and (b) all lawful claims for labor, materials, and supplies, which, if
unpaid, might by law become a lien upon the property of the Company; provided, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings; and provided further that the Company shall not be required to
cause to be paid or discharged any such tax, assessment, charge or claim if the Company shall
determine that such payment is not advantageous to the conduct of the business of the Company taken
as a whole and that the failure so to pay or discharge is not disadvantageous in any material
respect to the Securityholders.



     SECTION 4.09. Luxembourg Publications. In the event of the publication of any notice
pursuant to Section 3.02, 6.10, 7.10(a), 7.11 and 10.02, the party making such publication in the
Borough of Manhattan, The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer’s Certificate delivered to such party, make a
similar publication in Luxembourg.



ARTICLE FIVE




SECURITYHOLDERS’ LISTS AND REPORTS



BY THE COMPANY AND THE TRUSTEE




     SECTION 5.01. Company to Furnish Trustee Information as to the Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the Trustee, not less
than 45 days nor more than 60 days after each date (month and day) specified as an



29









 







Interest Payment
Date for the Securities of the first series issued under this Indenture (whether or not any
Securities of that series are then Outstanding), but in no event less frequently than semiannually,
and at such other times as the Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list in such form as the Trustee may reasonably require containing
all the information in the possession or control of the Company, or any of its Paying Agents other
than the Trustee, as to the names and addresses of the Holders of Securities, obtained since the
date as of which the next previous list, if any, was furnished, excluding from any such list the
names and addresses received by the Trustee in its capacity as registrar (if so acting). Any such
list may be dated as of a date not more than 15 days prior to the time such information is
furnished and need not include information received after such date.



     SECTION 5.02. Preservation of Information; Communication to Securityholders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of the Holders of Securities of each series (1) contained in the most recent list
furnished to it as provided in Section 5.01, (2) received by the Trustee in the capacity of Paying
Agent or registrar (if so acting) and (3) filed with the Trustee within the two preceding years as
provided for in Section 5.04(c). The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.



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



          (1) afford such applicants access to the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 5.02; or




          (2) inform such applicants as to the approximate number of Holders of Securities of such
series or all Securities, as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to such Securityholders the form of proxy
or other communications, if any, specified in such application.




     If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each of the Holders of
Securities of such series, or all Securities, as the case may be, whose name and address appear in
the information preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the Trustee of the material
to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of
the Holders of Securities of such series or all Securities, as the case may be, or would



30









 







be in
violation of applicable law. Such written statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.



     (c) Each and every Holder of the Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any Paying Agent nor any
registrar shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the provisions of subsection
(b) of this Section 5.02, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material pursuant to a
request made under said subsection (b).



     SECTION 5.03. Reports by Company. (a) The Company covenants and agrees to file with
the Trustee within 15 days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such rules and
regulations.



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



     (c) The Company covenants and agrees to transmit to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent provided in subsection
(c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section
5.04, such summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 5.03 as may be required by rules and
regulations prescribed from time to time by the Commission.



     (d) The Company and any other obligor on the Securities each covenant and agree to furnish to
the Trustee, not less than annually, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her knowledge of the
Company’s compliance with all conditions and covenants of this Indenture (which



31









 







compliance shall be
determined without regard to any period of grace or requirement of notice as provided in this
Indenture). Such certificates need not comply with Section 13.03 of this Indenture.



     SECTION 5.04. Reports by Trustee. (a) On or before the first July 15th following
the date of execution of this Indenture, and on or before July 15 in every year thereafter, if and
so long as any Securities are Outstanding hereunder, the Trustee shall transmit to the
Securityholders as hereinafter in this Section 5.04 provided, a brief report dated as of the
preceding May 15 with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no report need be
transmitted):



          (1) any change to its eligibility under Section 7.09, and its qualifications under Section
7.08;




          (2) the creation of or any material change to a relationship specified in paragraph (1)
through (10) of Section 7.08(d);




          (3) the character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on
the date of such report, and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than one–half of one percent of
the principal amount of the Securities of such series Outstanding on the date of such report;




          (4) the amount, interest rate and maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as collateral security therefor,
except indebtedness based upon a creditor relationship arising in any manner described in paragraph
(2), (3), (4) or (6) of subsection (b) of Section 7.13;




          (5) any change to the property and funds, if any, physically in the possession of the Trustee
(as such) on the date of such report;




          (6) any additional issue of Securities which the Trustee has not previously reported; and




          (7) any action taken by the Trustee in the performance of its duties under this Indenture
which it has not previously reported and which in its opinion materially affects the Securities,
except action in respect of a default, notice of which has been or is to be withheld by it in
accordance with the provisions of Section 6.10.




     (b) The Trustee shall transmit to the Securityholders, as hereinafter provided, a brief report
with respect to the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this Section 5.04



32









 







(or
if no such report has yet been so transmitted, since the date of execution of this Indenture), for
the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities
of any series on property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time aggregate ten
percent or less of the principal amount of Securities of such series Outstanding at such time, such
report to be transmitted within 90 days after such time.



     (c) Reports pursuant to this Section 5.04 shall be transmitted by mail (i) to all Holders of
Securities of any series, as the names and addresses of such Holders shall appear upon the Register
of the Securities of such series, (ii) to such Holders of Securities as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee for that purpose and
(iii) except in the case of reports pursuant to subsection (b) of this Section 5.04 to each Holder
whose name and address are preserved at the time by the Trustee as provided in Section 5.02(a)
hereof.



     (d) A copy of each such report shall, at the time of such transmission to Securityholders, be
filed by the Trustee with each stock exchange upon which the Securities of any series are listed
and also with the Commission. The Company will notify the Trustee when and as the Securities of
any series become listed on any stock exchange.



ARTICLE SIX




REMEDIES OF THE TRUSTEE AND



SECURITYHOLDERS ON EVENT OF DEFAULT




     SECTION 6.01. Events of Default; Acceleration, Waiver of Default and Restoration of
Position and Rights. The term “Event of Default” whenever used herein with respect to any
particular series of Securities shall mean any one of the following events:



     (a) default in the payment of any installment of interest on any Security of such series as
and when the same shall become due and payable, and continuance of such default for a period of 30
days provided however, that an extension of one or more Interest Payment Dates by the Company in
accordance with the provisions of any Supplemental Indenture, shall not constitute an Event of
Default; or



     (b) default in the payment of all or any part of the principal of or any premium on any
Security of such series as and when the same shall become due and payable whether at maturity, by
proceedings for redemption, by declaration or otherwise, provided however, that an extension
of the Stated Maturity for payment of principal of Securities of such series in accordance
with the provisions of any Supplemental Indenture, shall not constitute an Event of Default; or



     (c) default in the satisfaction of any sinking fund payment obligation relating to such series
of Securities, when and as such obligation shall become due and payable provided however, that an
extension of the Stated Maturity for payment of any sinking fund payment with respect to Securities
of such series in accordance with the provisions of any Supplemental Indenture, shall not
constitute an Event of Default; or



33









 





     (d) failure on the part of the Company to observe or perform in any material respect any other
of the covenants or agreements on its part in the Securities or in this Indenture (including any
Supplemental Indenture or pursuant to any Officer’s Certificate, as contemplated by Section 2.03)
specifically contained for the benefit of the Holders of the Securities of such series, for a
period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of not less than 25% in principal
amount of the Securities of such series and all other series so benefited (all series voting as one
class) at the time Outstanding under this Indenture a written notice specifying such failure and
stating that such is a “Notice of Default” hereunder; or



     (e) the entry by a court having jurisdiction in the premises of a decree or order for relief
in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part
of its property, or ordering the winding up or liquidation of its affairs, if such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or



     (f) the commencement by the Company of a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the Company’s consent to the entry
of an order for relief in any involuntary case under any such law, or its consent to the
appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for any substantial part of its property, or
the making by the Company of any general assignment for the benefit of creditors, or its failure
generally to pay its debts as they become due or the taking by the Company of any corporate action
in furtherance of any of the foregoing; or



     (g) any other Event of Default provided in the Officer’s Certificate or Supplemental Indenture
under which such series of is issued or in the form of Security for such series.



     If an Event of Default described in clause (a), (b) or (c) shall have occurred and be
continuing with respect to any one or more series of Outstanding Securities, then and in each and
every such case, unless the principal amount of all the Securities of each series as to which there
is an Event of Default shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in principal amount of the Securities of such series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Company (and to
the Trustee if given by Securityholders) may declare the principal amount (or, if the Securities of
any such series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all the Securities of such series, together with any
accrued interest, to be due and payable immediately, and upon any such
declaration the same shall be immediately due and payable, anything in this Indenture or in
the Securities of such series contained to the contrary notwithstanding.



     Except as otherwise provided in the terms of any series of Securities pursuant to Section
2.03, if an Event of Default described in clause (d) or (g) above with respect to all series of
Securities then Outstanding, occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of all of the Securities
then Outstanding hereunder (treated as one class) by notice in writing to the Company (and to the



34









 







Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of
any series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all of the Securities then Outstanding, and the interest
accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same
shall become immediately due and payable. If an Event of Default described in clause (e) or (f)
above occurs and is continuing, then the principal amount of all of the Securities then
Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holder.



     If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of
Default is with respect to less than all series of Securities then Outstanding, then, and in each
and every such case, except for any series of Securities the principal of which 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 each such affected series then Outstanding hereunder (each
such series voting as a separate class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the Securities of such series
are Original Issue Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.



     The foregoing provisions, however, are subject to the condition that if, at any time after the
principal amount (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof of the Securities of any one or more series (or
of all the Securities, as the case may be) shall have been so declared due and payable, and before
any judgment or decree for the payment of moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of such series (or upon all the
Securities, as the case may be) and the principal of any and all Securities of such series (or of
any and all the Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent permitted by law and
on such principal at the rate or rates of interest borne by, or prescribed therefor in the
Securities of such series to the date of such payment or deposit) and interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to
the date of such payment or deposit; and the amounts payable to the Trustee under
Section 7.06 and any and all defaults under the Indenture with respect to Securities of such
series (or all Securities, as the case may be), other than the non– payment of principal of and any
accrued interest on Securities of such series (or any Securities, as the case may be) which shall
have become due by declaration shall have been cured, remedied or waived as provided in Section
6.09 –– then and in every such case the Holders of a majority in principal amount of the Securities
of such series (or of all the Securities, as the case may be) then Outstanding (such series or all
series voting as one class if more than one series are so entitled) by written notice to the
Company and to the Trustee, may rescind and annul such declaration and its consequences;



35









 







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



     For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



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



     SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on Securities on
Default in Payment of Interest or Principal. The Company covenants that:



          (a) in case default shall be made in the payment of any installment of interest on any of the
Securities of any series as and when the same shall become due and payable and which payment has
not been extended in accordance with the provisions of a Supplemental Indenture, and such default
shall have continued for a period of 30 days; or




          (b) in case default shall be made in the payment of all or any part of the principal of any of
the Securities of any series when the same shall have become due and payable and which payment has
not been extended in accordance with the provisions of a Supplemental Indenture, whether at the
Stated Maturity of such series or by any call for redemption or by declaration of acceleration or
otherwise; or




          (c) in case default shall be made in the satisfaction of any sinking fund obligation when and
as such obligation becomes due and payable and which payment has not been extended in accordance
with the provisions of a Supplemental Indenture, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the Holders of the Securities
of such series, the whole amount that then shall have become due and payable on all such
Securities of such series and such Coupons, for principal (and any premium) and interest and for
any overdue sinking fund payment together with interest upon the overdue principal and installments
of interest (to the extent permitted by law) at the rate or rates of interest borne by or Yield to
Maturity (in the case of Original Issue Discount Securities), or prescribed therefor in, the
Securities of such series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expense of collection, including a reasonable compensation to the Trustee, its

36









 








agents and counsel, and any expenses or liabilities incurred, and all advances made, by the Trustee
hereunder other than through its negligence or bad faith.




     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as Trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such Securities, and collect
in the manner provided by law out of the property of the Company or any other obligor upon such
Securities wherever situated the moneys adjudged or decreed to be payable.



     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.



     SECTION 6.03. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:



          (a) to file and prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Securities (or, if the Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of such
Securities) and to file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding; and




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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.06.





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



     SECTION 6.04. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or the Securities of any series or Coupons
appertaining to such Securities, may be prosecuted and enforced by the Trustee to the fullest
extent permitted by law without the possession of any of the Securities of any series or Coupons
appertaining to such Securities, or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities or Coupons in respect of which
such judgment has been recovered.



     SECTION 6.05. Application of Moneys Collected by Trustee. Any moneys collected by
the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys, upon presentation of the several
Securities or Coupons appertaining to such Securities in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:



          FIRST: To the payment of all amounts due to the Trustee under Section 7.06;




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




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




38









 








                FOURTH: To the payment of the remainder, with appropriate interest to the Company or its
successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court
of competent jurisdiction may direct.



     SECTION 6.06. Limitation on Suits by Holders of Securities. No Holder of any
Security of any series or of any Coupon appertaining thereto 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 such Holder previously shall have given to the
Trustee written notice of a continuing Event of Default, as hereinbefore provided, and unless also
the Holders of not less than 25% in 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 and 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 (including the reasonable fees of counsel for the Trustee), and the Trustee, for
60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to this Section 6.06; it being
understood and intended, and being expressly covenanted by the taker and Holder of every Security
or Coupon with every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have any right in any
manner whatever 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 Coupons appertaining to 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 the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the provisions of this
Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.



     Notwithstanding any other provisions in this Indenture, the right of any Holder of any
Security or Coupon to receive payment of the principal of and interest on such Security or Coupon
on or after the respective due dates expressed in such Security (or, in the case of redemption, on
or after the date fixed for redemption), or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected without the consent of
such Holder.



     SECTION 6.07. Rights and Remedies Cumulative. All powers and remedies given by this
Article Six to the Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay
or omission of the Trustee or of any Holder of any of the Securities or Coupons to exercise any
right or power accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.06, every power and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as



39









 




often as shall be deemed expedient, by the Trustee or by the Holders. The assertion or employment
of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.




     SECTION 6.08. Delay or Omission Not Waiver. No delay or omission of the Trustee or
of any Holder of any Securities or Coupons to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Subject to the provisions of Section 6.06, every right and
remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.



     SECTION 6.09. Control by Holders; Waiver of Past Defaults. The Holders of a majority
in principal amount of the Securities of all series (voting as one class) at the time Outstanding
(determined as provided in 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; provided, however, that, subject to Section 7.01 the Trustee shall
have the right to decline to follow any such direction if the Trustee in reliance upon an Opinion
of Counsel determines that the action so directed may not lawfully be taken, or if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not parties to such direction, and provided further that
nothing in this Indenture shall impair the right of the Trustee to take any action deemed proper by
the Trustee and which is not inconsistent with such direction by the Holders.



     The Company may set a special record date for purposes of determining the identity of the
Holders of Securities entitled to vote or consent to any action by vote or consent authorized or
permitted by this Section 6.09. Such record date shall be the later of 15 days prior to the first
solicitation of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 5.01 of this Indenture prior to such solicitation.



     The Holders of not less than a majority in principal amount of the Securities of any series at
the time Outstanding (determined as provided in Section 8.04) may on behalf of the Holders of all
the Securities of such series waive any past Event of Default with respect to such series and its
consequences (subject to Section 6.02), except a continuing Event of Default specified in Section
6.01(a), (b) or (c), or in respect of a covenant or provision of this Indenture which under Article
Ten cannot be modified or amended without the consent of the Holder of each Security so affected.
Upon any such waiver, the Company, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively, and such Event of
Default shall be deemed to have been cured and not continuing for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default
or impair any right consequent thereon.



     SECTION 6.10. Trustee to Give Notice of Defaults Known to it, but May Withhold in Certain
Circumstances. The Trustee shall, within 90 days after the occurrence of a default with
respect to the Securities of any series, give notice of all defaults with respect to that series
known to the Trustee (i) if any Unregistered Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of
Manhattan,



40









 







The City of New York and at least once in an Authorized Newspaper in London (and, if
required by Section 4.09, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all
Holders of Securities of such series in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, unless in each case such defaults shall have been cured before the mailing
or publication of such notice (the term “default” for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided, that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the payment of any sinking
fund installment on such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Securityholders of such series.



     SECTION 6.11. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee. All parties to this Indenture agree, and each Holder of any
Security 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 6.11 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Holder of Securities of
any series, or group of such Holders, holding in the aggregate more than ten percent in principal
amount of the Securities of such series Outstanding, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of or any interest or premium on any Security, on
or after the due date expressed in such Security or for such interest (or in the case of any
redemption, on or after the dated fixed for redemption).



     SECTION 6.12. Waiver of Stay or Extension Laws The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that they will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.



ARTICLE SEVEN




CONCERNING THE TRUSTEE




     SECTION 7.01. Certain Duties and Responsibilities of Trustee. The Trustee, prior to
the occurrence of an Event of Default and after the curing, remedying or waiving of all Events of
Default which may have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has occurred (which has not
been cured, remedied or waived), the Trustee shall exercise such of the rights and powers vested



41









 







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 or her own affairs.



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



     (a) prior to the occurrence of an Event of Default and after the curing, remedying or waving
of all Events of Default which may have occurred:



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




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




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



     (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders of Securities pursuant to Section
6.09 relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.



     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 hereunder 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 adequate indemnity against such risk or liability
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 and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;



42









 





     (b) Any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof shall
be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced
to the Trustee by a Board Resolution;



     (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,
suffered or omitted by it hereunder in good faith and in accordance with such written advice or
Opinion of Counsel;



     (d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the 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 which may be incurred
therein or thereby;



     (e) The Trustee shall not be liable for any action taken or omitted 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, debenture, note or other paper or document, unless requested in writing so
to do by the Holders of Securities pursuant to Section 6.09; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, 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 such
proceeding; and provided further, that nothing in this subsection (f) shall require the Trustee to
give the Securityholders any notice other than that required by Section 6.10. The reasonable
expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be
reimbursed by the Company upon demand;



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



     (h) The Trustee shall be under no responsibility for the approval by it in good faith of any
expert for any of the purposes expressed in this Indenture.



     SECTION 7.03. Trustee Not Responsible for Recitals or Application of Proceeds. The
recitals contained herein and in the Securities (other than the certificate of authentication on
the Securities) shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of any of the Securities or of the proceeds
thereof.



43









 





     SECTION 7.04. Trustee May Own Securities or Coupons. The Trustee, any Paying Agent,
registrar or any agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the same rights it would have if it
were not Trustee, Paying Agent, registrar or such other agent.



     SECTION 7.05. Moneys Received by Trustee to be Held in Trust. Moneys held by the
Trustee in trust need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.



     SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and Indemnity. The
Company agrees to pay to the Trustee from time to time reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of any express trust),
and 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 connection with the acceptance or
administration of its trust under 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. The
Company also agrees to indemnify the Trustee 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.
The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse
the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture. 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 payment of principal of or interest or redemption premium on particular
Securities.



     SECTION 7.07. Right of Trustee to Rely on Officer’s Certificate Where No Other Evidence
Specifically Prescribed. Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officer’s Certificate of the Company delivered to the Trustee, and
such Officer’s Certificate, in the absence of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.



     SECTION 7.08. Disqualification; Conflicting Interest. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in this Section 7.08, it shall, within 90 days
after ascertaining that it has such conflicting interest, and if the Event of Default to which such
conflicting interest relates has not been cured or duly waived or otherwise eliminated before the
end of such 90–day period, the Trustee shall either eliminate such conflicting interest or, except
as otherwise provided in this Section 7.08, resign in the manner and with the effect specified in
Section 7.10, such resignation to become effective upon the appointment of a successor trustee



44









 




and
such successor’s acceptance of such appointment, and the Company shall take prompt steps to appoint
a successor in accordance with Section 7.10.




     (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a)
of this Section 7.08, the Trustee shall, within ten days after the expiration of such 90–day
period, transmit notice of such failure to the Securityholders in the manner and to the extent
provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of
said Section 5.04.



     (c) Subject to the provisions of Section 6.11 of this Indenture, unless the Trustee’s duty to
resign is stayed as provided in subsection (f) of this Section 7.08, any Holder who has been a bona
fide Holder of Securities for at least six months may, on such Holder’s behalf and on behalf of all
other Holders similarly situated, petition any court of competent jurisdiction for the removal of
such Trustee and the appointment of a successor, if such Trustee fails after written request
thereof by such Holder to comply with the provisions of subsection (a) of this Section 7.08.



     (d) For the purposes of this Section 7.08 the Trustee shall be deemed to have a conflicting
interest with respect to the Securities of any series if an Event of Default (exclusive of any
period of grace or requirement of notice) has occurred with respect to Securities of such series
and:



          (1) the Trustee is trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the Company or any other
obligor on the Securities are outstanding or is trustee for more than one outstanding series of
securities, as hereinafter defined, under a single indenture of the Company or any other obligor on
the Securities, unless such other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture, provided that there shall be
excluded from the operation of this paragraph, this Indenture with respect to the Securities of any
other series Outstanding, and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company or any other obligor
on the Securities are outstanding, if (A) this Indenture is and such other indenture or indentures
(and all series of securities issued thereunder) are wholly unsecured and rank equally, and such
other indenture or indentures (and such series) are hereafter qualified under the Trust Indenture
Act, unless the Commission shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture Act, that differences exist
between the provisions of this Indenture with respect to Securities of such series and one or more
other series, or the provisions of this Indenture and the provisions of such other indenture or
indentures (or such series), which are so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to Securities of such series and such
other
series, or under this Indenture and such other indenture or indentures, or (B) the Company
shall have sustained the burden of proving, on application to the Commission and after opportunity
for hearing thereon, that the trusteeship under this Indenture with respect to Securities of such
series and such other series, or under this Indenture and such other indenture, is not so likely to
involve a material conflict of interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such under this Indenture with
respect to

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Securities of such series and such other series, or under this Indenture and one of such
indentures;




          (2) the Trustee or any of its directors or executive officers is an underwriter for the
Company or any other obligor on the Securities;




          (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or
is under direct or indirect common control with an underwriter for the Company or any other obligor
on the Securities;




          (4) the Trustee or any of its directors or executive officers is a director, officer, partner,
employee, appointee or representative of the Company or any other obligor on the Securities, or of
an underwriter (other than the Trustee itself) for the Company or any other obligor on the
Securities who is currently engaged in the business of underwriting, except that (A) one individual
may be a director and/or an executive officer of the Trustee and a director and/or an executive
officer of the Company or any other obligor on the Securities, but may not            be at the same time
an executive officer of both the Trustee and the Company or any other obligor on the Securities;
(B) if and so long as the number of directors of the Trustee in office is more than nine, one
additional individual may be a director and/or an executive officer of the Trustee and a director
of the Company or any other obligor on the Securities; and (C) the Trustee may be designated by the
Company or any other obligor on the Securities or by an underwriter for the Company or any other
obligor on the Securities to act in the capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent or depositary, or in any other similar capacity, or, subject to
the provisions of paragraph (1) of this subsection (d), to act as trustee whether under an
indenture or otherwise;




          (5) ten percent or more of the voting securities of the Trustee is beneficially owned either
by the Company or any other obligor on the Securities or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by
any two or more of such Persons; or ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or any other obligor on the Securities
or by any director, partner or executive officer thereof or is beneficially owned, collectively, by
any two or more such Persons;




          (6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation
which is in default, as hereinafter defined, (A) five percent or more of the voting securities, or
ten percent or more of any other class of security, of the Company or any other obligor on the
Securities, not including the Securities issued under this Indenture and securities issued under
any other indenture under which the Trustee is also trustee, or (B) ten percent or more of any
class of security of an underwriter for the Company or any other obligor on the Securities;




          (7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation
which is in default, as hereinafter defined, five percent or more of the voting securities of any
Person who, to the knowledge of the Trustee, owns ten percent or more of the voting securities of,
or controls directly or indirectly or is under direct or indirect common control with the Company
or any other obligor on the Securities;




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          (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation
which is in default, as hereinafter defined, ten percent or more of any class of security of any
Person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the
Company or any other obligor on the Securities; or




          (9) the Trustee owns on the date of the occurrence of such Event of Default (exclusive of any
period of grace or requirement of notice) or any anniversary thereof while such Event of Default
remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar capacity an aggregate of 25%
or more of the voting securities or of any class of security, of any Person, the beneficial
ownership of a specified percentage of which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this subsection (d). As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall not apply, for a period of two
years from the date of such acquisition, to the extent that such securities included in such estate
do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after
the date of the occurrence of any such Event of Default and annually in each succeeding year that
the Securities or any series thereof remain in default, the Trustee shall make a check of its
holdings of such securities in any of the above–mentioned capacities as of such date. If the
Company or any other obligor on the Securities fails to make payment in full of principal of or
interest on any of the Securities when and as the same become due and payable and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such
securities in any of the above–mentioned capacities as of the date of the expiration of such 30–day
period, and after such date, notwithstanding the foregoing provisions of this paragraph (9), all
such securities so held by the Trustee, with sole or joint control over such securities vested in
it, shall, but only so long as such failure shall continue, be considered as though beneficially
owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (d); or




          (10) except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of
Section 7.13(b), the Trustee shall be or become a creditor of the Company or any other obligor on
the Securities.




     The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (d)
shall not be construed as indicating that the ownership of such percentages of the securities of a
Person is or is not necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection (d).



     For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (d) only, (A) the
terms “security” and “securities” shall include only such securities as are generally known as
corporate securities, but shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a Person by one or more banks, trust companies
or banking firms, or any certificate of interest or participation in any such note or evidence
of indebtedness; (B) an obligation shall be deemed to be in default when a default in payment of
principal shall have continued for 30 days or more and shall not have been cured; and (C) the
Trustee shall not be deemed to be the owner or Holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in default as defined
in clause (B) above, or (ii) any security which it holds as collateral security under this
Indenture,



47









 







irrespective of any default hereunder, or (iii) any security which it holds as agent for
collection, or as custodian, escrow agent or depositary, or in any similar representative capacity.



     (e) For the purposes of this Section 7.08:



          (1) The term “underwriter” when used with reference to the Company or any other obligor on the
Securities shall mean every Person who, within one year prior to the time as of which the
determination is made, has purchased from the Company or any other obligor on the Securities with a
view to, or has offered or sold for the Company or any other obligor on the Securities in
connection with, the distribution of any security of the Company or any other obligor on the
Securities outstanding at such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not include a Person whose
interest was limited to a commission from an underwriter or dealer not in excess of the usual and
customary distributors’ or sellers’ commission.




          (2) The term “director” shall mean any director of a Company or any individual performing
similar functions with respect to any organization whether incorporated or unincorporated.




          (3) The term “trust” shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.




          (4) The term “voting security” shall mean any security presently entitling the owner or Holder
thereof to vote in the direction or management of the affairs of a Person, or any security issued
under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or
agents for the owner or Holder of such security are presently entitled to vote in the direction or
management of the affairs of a Person.




          (5) The term “executive officer” shall mean the president, every vice–president, every trust
officer, the cashier, the secretary and the treasurer of a Company, and any individual customarily
performing similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of directors.




          (6) Except for purposes of paragraphs (6), (7), (8) and (9) of subsection (d) of this Section
7.08, the term “security” or “securities” shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation in any profit–sharing
agreement, collateral–trust certificate, pre–organization certificate or subscription, transferable
share, investment contract, voting–trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a “security” or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant
or right to subscribe to or purchase, any of the foregoing.




          (7) For the purpose of subsection (d)(1) of this Section 7.08, the term “series of securities”
or “series” means a series, class or group of securities issuable under an indenture pursuant to
whose terms Holders of one such series may vote to direct the indenture trustee, or otherwise take
action pursuant to a vote of such holders, separately from holders of

48









 








another such series;
provided, that “series of securities” or “series” shall not include any series of securities
issuable under an indenture if all such series rank equally and are wholly unsecured.




     The percentages of voting securities and other securities specified in this Section shall be
calculated in accordance with the following provisions:



          (A) A specified percentage of the voting securities of the Trustee, the Company or any other
Person referred to in this Section 7.08 (each of whom is referred to as a “Person” in this
paragraph) means such amount of the outstanding voting securities of such Person as entitles the
Holder or Holders thereof to cast such specified percentage of the aggregate votes which the
Holders of all the outstanding voting securities of such Person are entitled to cast in the
direction or management of the affairs of such Person.




          (B) A specified percentage of a class of securities of a Person means such percentage of the
aggregate amount of securities of the class outstanding.




          (C) The term “amount”, when used in regard to securities, means the principal amount if
relating to evidences of indebtedness, the number of shares if relating to capital shares, and the
number of units if relating to any other kind of security.




          (D) The term “outstanding” means issued and not held by or for the account of the issuer. The
following securities shall not be deemed outstanding within the meaning of this definition:




               (i) Securities of an issuer held in a sinking fund relating to securities of the issuer of the
same class;



               (ii) Securities of an issuer held in a sinking fund relating to another class of securities of
the issuer, if the obligation evidenced by such other class of securities is not in default as to
principal or interest or otherwise;



               (iii) Securities pledged by the issuer thereof as security for an obligation of the issuer not
in default as to principal or interest or otherwise; and



               (iv) Securities held in escrow if placed in escrow by the issuer thereof;


provided, however, that any voting securities of an issuer shall be deemed outstanding if any
Person other than the issuer is entitled to exercise the voting rights thereof.




          (E) A security shall be deemed to be of the same class as another security if both securities
confer upon the Holder or Holders thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest rates or maturity dates
of various series thereof shall not be deemed sufficient to constitute such series different
classes, and provided further that, in the case of unsecured evidences of indebtedness, differences
in the interest rate or maturity dates thereof shall not be deemed sufficient to constitute them
securities of different classes, whether or not they are issued under a single indenture.




49









 








     (f) Except in the case of a default in the payment of the principal of or interest on any
Securities, or in the payment of any sinking or purchase fund installment, the Trustee shall not be
required to resign as provided by this Section 7.08 if the Trustee shall have sustained the burden
of proving, on application to the Commission and after opportunity for hearing thereon, that (i)
the default under this Indenture may be cured or waived during a reasonable period and under the
procedures described in such application, and (ii) a stay of the Trustee’s duty to resign will not
be inconsistent with the interests of Holders of such series of Securities. The filing of such an
application shall automatically stay the performance of the duty to resign until the Commission
orders otherwise. Any resignation of the Trustee shall become effective only upon the appointment
of a successor trustee and such successor’s acceptance of such appointment.



     SECTION 7.09. Requirements for Eligibility of Trustee. There shall always be at
least one Trustee hereunder. The Trustee hereunder shall at all times be a Company organized and
doing business as a commercial bank under the laws of the United States of America or any state
thereof or of the District of Columbia or a Company or other Person permitted to act as a trustee
by the Commission and, in each case, authorized under such laws to exercise corporate trust powers,
having (or, in the case of a subsidiary of a bank holding company, its bank holding company parent
shall have) a combined capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal, State or District of Columbia authority. If such Company or bank holding
company parent 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 Company or bank holding company parent shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. No obligor on the Subordinated Securities or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.09, the Trustee shall resign immediately in the manner and with the effect specified in
this Article Seven.



     SECTION 7.10. Resignation and Removal of Trustee; Appointment of Successor.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with
respect to one or more or all series of Securities by giving written notice of resignation to the
Company and (i) if any Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 4.09, at least once in an Authorized Newspaper in
Luxembourg), (ii) if any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were
so furnished to the Trustee and (iii) by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the mailing of such



50









 







notice
of resignation, the resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, 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 of the following shall occur:



          (1) the Trustee shall fail to comply with the provisions of subsection (a) 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 of the applicable series for at least six months; or




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




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




          (4) the Company shall determine that the Trustee has failed to perform its obligations under
this Indenture in any material respect, then, in any such case, the Company may remove the Trustee
and appoint a successor trustee by written instrument executed by an authorized officer of the
Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.11, any Securityholder who has
been a bona fide Holder of a Security or Securities of the affected series for at least six months
may, on such Person’s behalf and on behalf of all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee
with respect to such series. 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 principal amount of the Securities Outstanding (determined as
provided in Section 8.04) may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments signed by such Holders or their attorneys–in–fact duly
authorized, or by the affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted thereto with respect
to such removal and appointment (as provided in Article Nine), and by delivery thereof to the
Trustee so removed, to the successor trustee and to the Company.



     (d) Any resignation or removal of the Trustee and any appointment of a successor trustee
pursuant to any of the provisions of this Section 7.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.



51









 





     SECTION 7.11. Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers with respect to the trustee so
ceasing to act. Upon written request of any such successor trustee, the Company shall execute any
and all instruments in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 7.06.



     No successor trustee shall accept appointment as provided in this Section 7.11 unless at the
time of such acceptance such successor trustee shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09.



     Upon acceptance of appointment by a successor trustee as provided in this Section 7.11, the
Company shall give notice thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.09, at least once in an Authorized Newspaper in
Luxembourg), (b) if any Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, by mailing such notice to such Holders at such addresses as
were so furnished to the Trustee (and the Trustee shall make such information available to the
Company for such purpose) and (c) to the Holders of Registered Securities of each series affected,
by mailing such notice to such Holders at their addresses as they shall appear on the registry
books. If the acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the notice called for by
Section 7.10. If the Company fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Company.



     SECTION 7.12. Successor to Trustee by Merger, Consolidation or Succession to
Business. Any Company into which the Trustee may be merged or converted or with which it may
be consolidated, or any Company resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Company succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of the trust created by this
Indenture), shall be the successor of the Trustee hereunder, provided such Company shall be
qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding.



52









 





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



     SECTION 7.13. Preferential Collection of Claims Against Company. (a) Subject to the
provisions of subsection (b) of this Section 7.13, if the Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Company or any other obligor on the
Securities within three months prior to a default, as defined in subsection (c) of this Section
7.13, or subsequent to such a default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit of the Trustee individually,
the Holders of the Securities for which it is acting as Trustee, and the holders of other indenture
securities (as defined in subsection (c) of this Section 7.13):



          (1) an amount equal to any and all reductions in the amount due and owing upon any claim as
such creditor in respect of principal or interest, effected after the beginning of such three
months’ period, and valid as against the Company or such other obligor on the Securities and its
other creditors, except any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the exercise of any right of
set–off which the Trustee could have exercised if a petition in bankruptcy had been filed by or
against the Company or such other obligor on the Securities upon the date of such default; and




          (2) all property received by the Trustee in respect of any claims as such creditor, either as
security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of
such three months’ period, or an amount equal to the proceeds of any such property if disposed of,
subject, however, to the rights, if any, of the Company or such other obligor on the Securities and
their respective other creditors in such property or such proceeds.




     Nothing herein contained, however, shall affect the right of the Trustee:



          (A) to retain for its own account (i) payments made on account of any such claim by any Person
(other than the Company or such other obligor on the Securities) who is liable thereon, and (ii)
the proceeds of the bona fide sale of any such claim by the Trustee to a third Person, and (iii)
distributions made in cash, securities or other property in respect of claims filed against the
Company or such other obligor on the Securities in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or applicable State laws;




          (B) to realize, for its own account, upon any property held by it as security for any such
claim, if such property was so held prior to the beginning of such three months’ period;




53









 








          (C) to realize, for its own account, but only to the extent of the claim hereinafter
mentioned, upon any property held by it as security for any such claim, if such claim was created
after the beginning of such three months’ period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section 7.13, would occur within three
months; or




          (D) to receive payment on any claim referred to in paragraph (B) or (C), against the release
of any property held as security for such claim as provided in such paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.




     For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of
such three months’ period for property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same status as the property
released, and to the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding any preexisting claim
of the Trustee as such creditor, such claim shall have the same status as such preexisting claim.



     If the Trustee shall be required to account, the funds and property held in such special
account and the proceeds thereof shall be apportioned among the Trustee, the Holders of Securities
for which it is acting as Trustee, and the holders of other indenture securities in such manner
that the Trustee, such Securityholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on claims filed against the
Company or such other obligor on the Securities in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company or such other obligor on the Securities
of the funds and property in such special account and before crediting to the respective claims of
the Trustee, such Securityholders, and the holders of other indenture securities dividends on
claims filed against the Company or such other obligor on the Securities in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the United States Code or
applicable State law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph, with respect to any
claim, the term “dividends” shall include any distribution with respect to such claim in bankruptcy
or receivership or in proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, whether such distribution is made in cash, securities or other property,
but shall not include any such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion among the Trustee, such Securityholders, and the
holders of other indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment in whole or in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to
be made to the Trustee, such Securityholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be necessary to liquidate or
to



54









 







appraise the value of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claim, or otherwise to apply the provisions of this
paragraph as a mathematical formula.



     Any Trustee who has resigned or been removed after the beginning of such three months’ period
shall be subject to the provisions of this subsection (a) as though such resignation or removal had
not occurred. If any Trustee has resigned or been removed prior to the beginning of such three
months’ period, it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:



          (i) the receipt of property or reduction of claim which would have given rise to the
obligation to account, if such Trustee had continued, as trustee, occurred after the beginning of
such three months’ period; and




          (ii) such receipt of property or reduction of claim occurred within three months after such
resignation or removal.




     In every case commenced under the Bankruptcy Act of 1898, or any amendment thereto enacted
prior to November 6, 1978, all references to periods of three months shall be deemed to be
references to periods of four months.



     (b) There shall be excluded from the operation of subsection (a) of this Section 7.13 a
creditor relationship arising from:



          (1) the ownership or acquisition of securities issued under any indenture, or any security or
securities having a maturity of one year or more at the time of acquisition by the Trustee;




          (2) advances authorized by a receivership or bankruptcy court of competent jurisdiction, or by
this Indenture, for the purpose of preserving any property which shall at any time be subject to
the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the making thereof is given
to the Securityholders at the time and in the manner provided in Section 5.04(c) with respect to
reports pursuant to subsections (a) and (b) thereof, respectively;




          (3) disbursements made in the ordinary course of business in the capacity of trustee under an
indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other
similar capacity;




          (4) an indebtedness created as a result of services rendered or premises rented, or an
indebtedness created as a result of goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 7.13;




          (5) the ownership of stock or of other securities of a Company organized under the provisions
of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor
of the Company or any other obligor on the Securities; and




55









 








          (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange,
acceptances or obligations which fall within the classification of self–liquidating paper as
defined in subsection (c) of this Section 7.13.




     (c) As used in this Section 7.13 the following terms shall be accorded the following
definitions:



          (1) the term “default” shall mean any failure to make payment in full of the principal of or
interest on any of the Securities or on the other indenture securities when and as such principal
or interest becomes due and payable.




          (2) the term “other indenture securities” shall mean securities upon which the Company or any
other obligor on the Securities is an “obligor” (as defined in the Trust Indenture Act) outstanding
under any other indenture (A) under which the Trustee is also trustee, (B) which contains
provisions substantially similar to the provisions of subsection (a) of this Section 7.13, and (C)
under which a default exists at the time of the apportionment of the funds and property held in
said special account.




          (3) the term “cash transaction” shall mean any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon demand.




          (4) the term “self–liquidating paper” shall mean any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company or any other obligor on the
Securities for the purpose of financing the purchase, processing, manufacture, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company or any other obligor on the Securities arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.




     SECTION 7.14. Appointment of Authenticating Agent. As long as any Subordinated
Securities of a series remain Outstanding, the Trustee may, by an instrument in writing, appoint
with the approval of the Company an authenticating agent (the “Authenticating Agent”) which shall
be authorized to act on behalf of the Trustee to authenticate Subordinated Securities, including
Subordinated Securities issued upon exchange, registration of transfer, partial redemption or
pursuant to Section 2.09. Subordinated Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Subordinated Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Subordinated Indenture to the authentication and delivery of Subordinated Securities
of any series by the Trustee or to the Trustee’s Certificate of
Authentication, such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing business under the laws of the United



56









 







States of America or of any State, authorized under such laws to exercise corporate trust powers,
having (or in the case of a subsidiary of a bank holding company, its bank holding company parent
shall have) a combined capital and surplus of at least $45,000,000 (determined as provided in
Section 7.09 with respect to the Trustee) and subject to supervision or examination by Federal or
State authority.



     Any corporation into which any Authenticating Agent may be merged or converted, or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent (including the agency contemplated by this Indenture) shall be a
party, or any corporation succeeding to the corporate agency business of any Authenticating Agent,
shall continue to be the authenticating Agent with respect to all series of Subordinated Securities
for which it served as Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may
at any time, and if it shall cease to be eligible shall, resign by giving written notice of
resignation to the Trustee and to the Company.



     Upon receiving such a notice of resignation or upon such a termination, or in case in any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 7.14 with respect to one or more series of Securities, the Trustee shall upon receipt of a
Company Order appoint a successor Authenticating Agent and the Company shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the extent provided in
Section 13.02. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The Company agrees to
pay to the Authenticating Agent for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee.



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



     This is one of the Securities described in the within–mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	U.S. Bank National Association, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	As Authenticating Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Signatory	 	 






     Sections 7.02, 7.03, 7.04, 7.06 and 8.03 shall be applicable to any Authenticating Agent.



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ARTICLE EIGHT




CONCERNING THE SECURITYHOLDERS




     SECTION 8.01. Evidence of Action by Securityholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in principal amount of the Securities of any or
all 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 specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by such Securityholders in
Person or by agent or proxy appointed in writing, or (b) by the record of such Holders of
Securities voting in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders.



     SECTION 8.02. Proof of Execution of Instruments and of Holding of Securities.
Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any instrument
by a Securityholder or such Holder’s 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 of any series (including Registered Global Securities) shall
be proved by the Register of such Securities of such series, or by certificates of the Security
registrar or registrars thereof.



     The Trustee shall not be bound to recognize any Person as a Securityholder unless and until
such Person’s title to the Securities held by it is proved in the manner in this Article Eight
provided.



     The record of any Securityholders’ meeting shall be proved in the manner provided in Section
9.06.



     The Trustee may accept such other proof or require such additional proof of any matter
referred to in this Section 8.02 as it shall deem reasonable.



     SECTION 8.03. Who May be Deemed Owners of Securities. Prior to due presentment for
transfer of any Security, the Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Person in whose name such Security shall be registered upon the Register of
Securities of the series of which such Security is a part as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of the principal of
and interest, subject to the provisions of this Indenture, on such Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such Holder for the
time being, or upon such Holder’s order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability of moneys payable upon any



58









 







such Security. The Company, the Trustee and any agent of
the Company or the Trustee may treat the Holder of any Unregistered Security and the Holder of any
Coupon as the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes and neither the Company, the Trustee, nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such
Unregistered Security or Coupon.



     If the Securities of any series are issued in the form of one or more Registered Global
Securities, the Depository therefor may grant proxies to Persons having a beneficial ownership in
such Registered Global Security or Securities for purposes of voting or otherwise responding to any
request for consent, waiver or other action which the Holder of such Registered Security is
entitled to grant or take under this Indenture and the Trustee shall accept such proxies for the
purposes granted; provided that neither the Trustee nor the Company shall have any obligation with
respect to the grant of or solicitation by the Depository of such proxies.



     SECTION 8.04.  Securities Owned by the Company or Controlled or Controlling Persons
Disregarded for Certain Purposes. In determining whether the Holders of the requisite
principal amount of Securities have concurred in any demand, direction, request, notice, vote,
consent, waiver or other action under this Indenture, Securities which are owned by the Company or
any other obligor on the Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any other obligor on
the Securities shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, provided that for the purposes of determining whether the Trustee shall be protected
in relying on any such demand, direction, request, notice, vote, consent, waiver or other action,
only Securities which a Responsible Officer of the Trustee assigned to its principal office knows
are so owned shall be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding for the purposes of this Section 8.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right to vote 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.



     Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all Securities, if any, known by the Company to be owned or
held by or for the account of the Company or any other obligor on the Securities or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities; and, subject to the provisions of Section 7.01,
the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein are Outstanding for
the purpose of any such determination.



     SECTION 8.05. Instruments Executed by Securityholders Bind Future Holders. At any
time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the Holders of the percentage in principal amount of the Securities
specified in this Indenture in connection with such action, any Holder of a Security which is
shown by the evidence to be included in the Securities the Holders of which have consented to



59









 







such
action may, by filing written notice with the Trustee at its principal office 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 and any direction, demand,
request, notice, waiver, consent, vote or other action of the Holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security, and of any Security
issued in lieu thereof, irrespective of whether any notation in regard thereto is made upon such
Security. Any action taken by the Holders of the percentage in principal amount of the Securities
of any or all series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all of the Securities of such
series subject, however, to the provisions of Section 7.01.



ARTICLE NINE




SECURITYHOLDERS’ MEETINGS




     SECTION 9.01. Purposes for Which Meetings May be Called. A meeting of Holders of
Securities of any or all series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:



          (a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Holders of Securities of any or all series, as the case may
be, pursuant to any of the provisions of Article Six;




          (b) to remove the Trustee and appoint a successor trustee pursuant to the provisions of
Article Seven;




          (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 10.02; or




          (d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified principal amount of the Securities of any or all series, as the case may be, under any
other provision of this Indenture or under applicable law.




     SECTION 9.02. Manner of Calling Meetings. The Trustee may at any time call a meeting
of Securityholders to take any action specified in Section 9.01, to be held at such time and at
such place in The City of New York, New York, as the Trustee shall determine. Notice of every
meeting of Securityholders, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be mailed not less than 20 nor more than 60
days prior to the date fixed for the meeting.



     SECTION 9.03. Call of Meeting by the Company or Securityholders. In case at any time
the Company pursuant to a resolution of its Board of Directors, or the Holders of not less than ten
percent in principal amount of the Securities of any or all series, as the case may be, then
Outstanding, shall have requested the Trustee to call a meeting of Holders of Securities of
any or all series, as the case may be, to take any action authorized in Section 9.01 by
written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the



60









 







Trustee shall not have mailed notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders of Securities in the amount above specified may determine
the time and place in either the City and County of _____, California or The City of New York,
New York for such meeting and may call such meeting to take any action authorized in Section 9.01,
by mailing (and publishing, if required) notice thereof as provided in Section 9.02.



     SECTION 9.04. Who May Attend and Vote at Meetings. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a Holder of one or more Securities with respect to
which the meeting is being held; or (b) be a Person appointed by an instrument in writing as proxy
by such Holder of one or more Securities. The only Persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.



     SECTION 9.05. Regulations May be Made by Trustee; Conduct of the Meeting; Voting Rights –
Adjournment. Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to
proof of the holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified in Section 8.02. and
the appointment of any proxy shall be proved in the manner specified in said Section 8.02;
provided, however, that such regulations may provide that written instruments appointing proxies
regular on their face, may be presumed valid and genuine without the proof hereinabove or in said
Section 8.02 specified.



     The Trustee shall by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Securityholders as provided in
Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.



     Subject to the provisions of Section 8.04, at any meeting each Securityholder or proxy shall
be entitled to one vote for each $1,000 (or [Euro] 1,000) principal amount (in the case of Original
Issue Discount Securities, such principal amount shall be equal to such portion of the principal
amount as may be specified in the terms of such series) of Securities held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by such Person or instruments in writing as aforesaid duly designating such Person
as the Person to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and
the meeting may be held so adjourned without further notice.



     At any meeting of Securityholders, the presence of Persons holding or representing Securities
in principal amount sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum is present,



61









 







the Persons
holding or representing a majority in principal amount of the Securities represented at the meeting
may adjourn such meeting with the same effect for all intents and purposes, as though a quorum had
been present.



     SECTION 9.06. Manner of Voting at Meetings and Record to be Kept. The vote upon any
resolution submitted to any meeting of Securityholders shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities or of their representatives by proxy and
the principal amount or principal amounts of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 9.02. The record shall show the principal amount or
principal amounts of the Securities voting in favor of or against any resolution. The record shall
be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and
one copy thereof shall be delivered to the Company and the other to the Trustee to be preserved by
the Trustee.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     SECTION 9.07. Exercise of Rights of Trustee and Securityholders Not to be Hindered or
Delayed. Nothing in this Article Nine contained shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrances or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or to the Securityholders under any of the
provisions of this Indenture or of the Securities.



ARTICLE TEN




SUPPLEMENTAL INDENTURES




     SECTION 10.01. Purposes for Which Supplemental Indentures May be Entered Into Without
Consent of Securityholders. Without the consent of the Holders of any Securities, the Company
and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall comply with the provisions of the Trust Indenture Act as then in
effect) for one or more of the following purposes:



     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;



     (b) if deemed appropriate by the Company or required by law, to evidence the succession of
another Company to the Company or successive successions and the assumption by the successor
Company of the covenants, agreements and obligations of the Company pursuant to Article Four
hereof;



62









 





     (c) to add to the covenants of the Company such further covenants, restrictions or conditions
as its Board of Directors and the Trustee shall consider to be for the protection of the Holders of
all or any series of Securities or Coupons (and if such covenants, restrictions or conditions are
to be for the benefit of less than all series of Securities, stating that such covenants,
restrictions or conditions are expressly being included solely for the benefit of such series), and
to make the occurrence, or the occurrence and continuance, of a default in any such additional
covenants, restrictions or conditions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such Supplemental Indenture may
provide for a particular period of grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default;



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



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



     (f) to establish the form or terms of Securities of any series or the Coupons appertaining to
such Securities as permitted by Sections 2.01 and 2.03;



     (g) to appoint, at the request of the Trustee, a successor Trustee for a particular series of
Securities to act as such pursuant to the provisions of this Indenture and to add to or change the
provisions of this Indenture to such extent as shall be necessary to facilitate the performance of
the duties of such trustee; and



     (h) to cure any ambiguity or to correct or supplement any provisions contained herein or in
any Supplemental Indenture which may be defective or inconsistent with any other provision
contained herein or in any Supplemental Indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture or any Supplemental Indenture which shall not
adversely affect the interests of the Holders of the Securities or Coupons.



     SECTION 10.02. Modification of Indenture with Consent of Holders of Securities. With
the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in
principal amount of the Securities of all series at the time Outstanding (determined as provided in
Section 8.04) affected by such Supplemental Indenture (voting as one class), the Company and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall comply with 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 the rights of the Holders of the Securities of each such series or the
Coupons appertaining to such Securities; provided, however, that no such Supplemental Indenture
shall, without the consent of the Holders of each Outstanding Security affect thereby:



63









 





     (a) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Stated Maturity thereof pursuant to Section 6.01, or change any
place of payment where, or the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on or after the date fixed
for redemption), or modify the provisions of this Indenture with respect to this subordination of
the Securities in a manner adverse to the Holders, or



     (b) Reduce the percentage in principal amount of the Outstanding Securities the consent of the
Holders of which is required for any such Supplemental Indenture, or the consent of the Holders of
which is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture or



     (c) Change the time of payment or reduce the amount of any minimum sinking account or fund
payment or



     (d) Modify any of the provisions of this Section 10.02, except to increase any such percentage
or to provide that certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Security affected thereby.



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



     Upon the request of the Company, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to a
Company Order) certified by the secretary or an assistant secretary of the Company authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 8.01, 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.



     It shall not be necessary for the consent of the Securityholders 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.



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions to this Section, the Trustee shall give notice thereof (i) to the



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Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a
notice thereof by first–class mail to such Holders at their addresses as they shall appear on the
Security Register, (ii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by
first–class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if
required by Section 4.09, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental indenture. Any
failure of the Company to give such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.



     SECTION 10.03. Effect of Supplemental Indentures. Upon the execution of any
Supplemental Indenture pursuant to the provisions of this Article Ten, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and
the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and conditions of any such
Supplemental Indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.



     The Trustee shall be entitled to receive, and subject to the provisions of Section 7.01 shall
be entitled to rely upon, an Opinion of Counsel as conclusive evidence that any such Supplemental
Indenture complies with the provisions of this Article Ten and that the Securities affected by the
Supplemental Indenture, when such Securities are authenticated and delivered by the Trustee and
executed and issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will be valid and binding obligations of the Company, except as any rights
thereunder may be limited by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors’ rights generally and by general equity principles.



     SECTION 10.04.  Securities May Bear Notation of Changes by Supplemental Indentures.
Securities authenticated and delivered after the execution of any Supplemental Indenture pursuant
to the provisions of this Article Ten, or after any action taken at a Securityholders’ meeting
pursuant to Article Nine, may bear a notation in form approved by the Trustee as to any matter
provided for in such Supplemental Indenture or as to any action taken at any such meeting. If the
Company or the Trustee shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee and the Company, to any modification of this Indenture contained in any such
Supplemental Indenture may be prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Securities then Outstanding.



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ARTICLE ELEVEN




DISCHARGE; DEFEASANCE




     SECTION 11.01. Satisfaction and Discharge of Indenture.



          (A) If at any time (i) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and Coupons appertaining thereto which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
2.09) as and when the same shall have become due and payable, or (ii) the Company shall have
delivered to the Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.09) or (iii) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause (b) below, (a) all
the Securities of such series and all unmatured Coupons appertaining thereto 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 (b) the
Company shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust the entire amount in (i) cash (other than moneys repaid by the Trustee or any Paying Agent
to the Company in accordance with Section 11.04), (ii) in the case of any series of Securities the
payments on which may only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit (“U.S. Government Obligations”), maturing as to principal and
interest at such times and in such amounts as will insure the availability of cash sufficient to
pay at such Maturity or upon such redemption, as the case may be, or (iii) 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 (a) the principal and
interest on all Securities of such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable and (b) any mandatory sinking fund payments on the dates
on which such payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series; (x) the principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or interest is due and payable and
(y) any mandatory sinking fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series; and if, in any such
case, the Company shall also pay or cause to be paid all other sums payable hereunder by the
Company, then this Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series and of Coupons appertaining
thereto and the Company’s right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon
the original stated due dates therefore (but not upon acceleration), and remaining rights of the
Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of
such series of Securities to the extent to be exercised to make such call for redemption within one
year, (v) the

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rights, obligations, duties and immunities of the Trustee hereunder, including those under
Section 6.6, (vi) the rights of the Holders of securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable
to all or any of them, and (vii) the obligations of the Company under Section 4.03 and the Trustee,
on demand of the Company accompanied by an Officer’s Certificate and an Opinion of Counsel and at
the cost and expense of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and interest on the Securities
and Coupons held by them shall not be delayed longer than required by then applicable mandatory
rules or policies of any securities exchange upon which the Securities are listed. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Indenture or the Securities of such series.




          (B) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in an Officer’s Certificate or indenture supplemental hereto provided pursuant
to Section 2.03. In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including the currency of
payment) of principal of and interest due on which can be determined at the time of making the
deposit referred to in clause (a) below, the Company shall be deemed to have paid and discharged
the entire indebtedness on all the Securities of such a series and the Coupons appertaining thereto
on the date of the deposit referred to in clause (a) below, and the provisions of this Indenture
with respect to the Securities of such series and Coupons appertaining thereto shall no longer be
in effect (except as to (i) rights of registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto and the Company’s right of optional redemption, if any,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised
to make such call for redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, (vi) the rights of the Holders of Securities of such series
and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vii) the obligations of the Company under
Section 4.03 and the Trustee, at the expense of the Company, shall at the Company’s request,
execute proper instruments acknowledging the same, if





     (a) with reference to this provision the Company has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in United States Dollars, U.S.
Government Obligations, maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) 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



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(a) the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and payable and (b)
any mandatory sinking fund payments on the dates on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities of such series;




     (b) such deposit will not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Company is a party or by which it is bound;




     (c) the Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Company has received from, or there has been published by, the IRS a ruling or
(y) since the date hereof, there has been a change in the applicable Federal income tax law,
in either case to the effect that, and such opinion shall confirm that, the Holders of the
Securities of such series and Coupons appertaining thereto will not recognize income, gain
or loss for United States Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States Federal income tax on the same
amount and in the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and




     (d) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.



          (C) The Company shall be released from its obligations under Sections 4.02 and unless
otherwise provided for in the Board Resolution, Officer’s Certificate or Indenture supplemental
hereto establishing such series of Securities, from all covenants and other obligations referred to
in Section 2.03(18) or 2.03(20) with respect to such series of Securities, and any Coupons
appertaining thereto, outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of any series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in such
Section, whether directly or indirectly by reason of any reference elsewhere herein to such Section
or by reason of any reference in such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of Default under Section 6.01,
but the remainder of this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection C of this Section 11.01:





     (a) The Company has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the holders of the Securities of
such series and coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payments on which may only be made in United States Dollars,
U.S. Government Obligations maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) 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 (a) the principal and
interest on all Securities of such series and



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Coupons appertaining thereof and (b) any mandatory sinking fund payments on the day on
which such payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series;




     (b) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit;




     (c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest
as defined in Section 7.08 and for purposes of the Trust Indenture Act with respect to any
securities of the Company;




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




     (e) Such covenant defeasance shall not cause any Securities then listed on any
registered national securities exchange under the Exchange Act to be delisted;




     (f) The Company shall have delivered to the Trustee an Officer’s Certificate and
Opinion of Counsel to the effect that the Holders of the Securities of such series and
Coupons appertaining thereto will not recognize income, gain or loss for United States
Federal income tax purposes as a result of such covenant defeasance and will be subject to
United States Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred; and




     (g) The Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.



     SECTION 11.02. Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 11.04, all moneys deposited with the Trustee (for other trustee) pursuant to
Section 11.01 shall be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such money need not be segregated from other funds
except to the extent required by law.



     SECTION 11.03. Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys
then held by any Paying Agent under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to such moneys.



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     SECTION 11.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years. Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of
the principal of and any premium and interest on any Security and any series of Coupons attached
thereto and not so applied but remaining unclaimed under applicable law shall be transferred by the
Trustee to the appropriate Persons in accordance with applicable laws, and the Holder of such
Security of such series and of any Coupons appertaining thereto shall thereafter look only to such
Persons for any payment which such Holder may be entitled to collect and all liability of the
Trustee and such Paying Agent with respect to such moneys shall thereupon cease.



     SECTION 11.05. Indemnity for U.S. Government of Obligations. The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 11.01 or the principal or interest
received in respect of such obligations.



ARTICLE TWELVE




IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS



AND DIRECTORS




     SECTION 12.01. Incorporators, Stockholders, Officers and Directors of Company Exempt From
Individual Liability. 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, as such past, present or
future, of the Company, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the
Company 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 issue of such Securities.



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ARTICLE THIRTEEN




MISCELLANEOUS PROVISIONS




     SECTION 13.01. Successors and Assigns of the Company Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the
Company shall bind its successors and assigns, whether so expressed or not.



     SECTION 13.02. Notices; Effectiveness. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Company, or by the Company or by the Holders of Securities to the
Trustee or upon the Depository by the Company or the Trustee may be electronically communicated or
hand delivered or sent by overnight courier, addressed to the relevant party as provided in this
Section 13.02.



     All communications intended for the Company shall be sent to:



Transmeta Corporation

3990 Freedom Circle

Santa Clara, CA 95054

Attention: General Counsel




     All communications intended for the Trustee shall be sent to:



U.S. Bank National Association

633 West Fifth Street, 24th Floor

Los Angeles, CA 90071

Attention: Corporate Trust Services

(Transmeta Corporation Senior Indenture

dated as of                     , 2007)




or at any other address of which any of the foregoing shall have notified the others in any manner
prescribed in this Section 13.02.



     For all purposes of this Indenture, a notice or communication will be deemed effective:



     (a) if delivered by hand or sent by overnight courier, on the day it is delivered unless (i)
that day is not a Business Day in the city specified (a “Local Business Day”) in the address for
notice provided by the recipient or (ii) if delivered after the close of business on a Local
Business Day, then on the next succeeding Local Business Day or



     (b) if sent by facsimile transmission, on the date transmitted, provided that oral or written
confirmation of receipt is obtained by the sender unless the date of transmission and confirmation
is not a Local Business Day, in which case, on the next succeeding Local Business Day.



     Any notice, direction, requires, demand, consent or waiver by the Company, any Securityholder
to or upon the Trustee shall be deemed to have been sufficiently given, made or



71









 







filed, for all purposes, if given, made or filed in writing at the Principal Office of the
Trustee in accordance with the provisions of this Section 13.02.



     Any notice, request, consent or waiver by the Company or the Trustee upon the Depository shall
have been sufficiently given, made or filed, for all purposes, if give or made in accordance with
the provisions of this Section 13.02 at the address shown for such Depository in the Register or at
such other address as the Depository shall have provided for purposes of notice.



     SECTION 13.03. Compliance Certificates and Opinions. Upon on any request or
application 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 Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any such application or
demand as to which the furnishing of such document is specifically required by any provision of
this Indenture relating to such particular application or demand, no additional certificate or
opinion need be furnished.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to Section 5.03(d) shall include (a) a statement that the Person
making such certificate or opinion has read such covenant or condition; (b) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that, in the opinion of such
Person, he or she has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.



     Any certificate, statement or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which such certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any certificate,
statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon the
certificate, statement or opinion of or representations by an officer or officers of the Company
stating that the information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which such Person’s certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are
erroneous.



     Any certificate, statement or opinion of an officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the accounting matters upon
which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are



72









 







erroneous. Any certificate or opinion of any firm of independent public accountants filed
with the Trustee shall contain a statement that such firm is independent.



     SECTION 13.04. Days on Which Payment to be Made, Notice Given or Other Action Taken.
If any date on which a payment is to be made, notice given or other action taken hereunder is a
Saturday, Sunday or legal holiday in the state in which the payment, notice or other action is to
be made, given or taken, then such payment, notice or other action shall be made, given or taken on
the next succeeding Business Day in such state, and in the case of any payment, no interest shall
accrue for the delay.



     SECTION 13.05. Provisions Required by Trust Indenture Act to Control. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with another provision
included in this Indenture which is required to be included in this Indenture by any of Sections
310 to 317, inclusive, of the Trust Indenture Act such required provision shall control.



     SECTION 13.06. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE.



     SECTION 13.07. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.



     SECTION 13.08.  Securities in a Foreign Currency or in ECU. Unless otherwise
specified in an Officer’s Certificate delivered pursuant to Section 2.03 of this Indenture with
respect to a particular series of Securities, whenever for purposes of this Indenture any action
may be taken by the Holders of a specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding Securities of any series which are denominated in a coin or currency
other than United States Dollars (including ECUs), then the principal amount of Securities of such
series which shall be deemed to be Outstanding for the purpose of taking such action shall be that
amount of United States Dollars that could be obtained for such amount at the Market Exchange Rate.
For purposes of this Section 13.08, Market Exchange Rate shall mean the noon United States Dollar
buying rate in The City of New York for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, in the case of ECUs, Market Exchange Rate shall mean
the rate of exchange determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities (such publication or any
successor publication, the “Journal”). If such Market Exchange Rate is not available for any
reason with respect to such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of
ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major banks in The City of
New York or in the country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU, rates of exchange as
the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.



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     All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Holders.



     SECTION 13.09. Judgment Currency. The Company agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of or interest on the
Securities of any series (the “Required Currency”), into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to close.



     SECTION 13.10. Provisions of the Indenture and Securities for the Sole Benefit of the
Parties and the Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give any Person, firm or Company, other than the parties
hereto and the Holders of the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision herein contained; all its
covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
Holders of the Securities.



     SECTION 13.11.  Indenture May be Executed in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.



[Signature page follows]




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IN WITNESS WHEREOF, TRANSMETA CORPORATION has caused this Indenture to be signed by its
Chairman of the Board or its President or Chief Financial Officer
or one of its Vice Presidents and U.S. BANK NATIONAL ASSOCIATION has caused this Indenture to be
signed and acknowledged by one of its Vice Presidents all as of the day and year first written
above.



	 	 	 	 	 	 	 
	 	 	TRANSMETA CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. Bank National Association, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Vice President	 	 







75