exv4wbw5






Exhibit 4(b)(5)




 

 






XEROX CORPORATION




and

THE BANK OF NEW YORK MELLON,

as Trustee




 






INDENTURE

December                     , 2009




 






 

 
















 





XEROX CORPORATION




RECONCILIATION AND TIE BETWEEN TRUST

INDENTURE ACT OF 1939 AND INDENTURE




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	608
	(a)(2)
	 	608
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	N.A.
	(b)
	 	605, 609(d)
	(c)
	 	N.A.
	311(a)
	 	605
	(b)
	 	605
	(c)
	 	N.A.
	312(a)
	 	701
	(b)
	 	107, 701
	(c)
	 	701
	313(a)
	 	101, 702
	(b)
	 	602
	(c)
	 	106, 602, 702
	(d)
	 	702
	314(a)
	 	103, 1005
	(b)
	 	N.A.
	(c)(1)
	 	103
	(c)(2)
	 	103
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	103
	(f)
	 	N.A.
	315(a)
	 	603
	(b)
	 	106, 601, 602
	(c)
	 	601
	(d)
	 	601
	(e)
	 	503, 609(d)
	316(a)(last sentence)
	 	N.A.
	(a)(1)(A)
	 	512
	(a)(1)(B)
	 	513
	(a)(2)
	 	N.A.
	(b)
	 	508
	(c)
	 	908
	317(a)(1)
	 	503
	(a)(2)
	 	504
	(b)
	 	N.A.
	318(a)
	 	113






N.A. means not applicable.






 




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















 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	PARTIES
	 	 	1	 
	RECITALS OF THE COMPANY
	 	 	1	 
	 
	 	 	 	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 101. Definitions
	 	 	1	 
	SECTION 102. Rules of Construction

	 	 	10	 
	SECTION 103. Compliance Certificates and Opinions
	 	 	11	 
	SECTION 104. Form of Documents Delivered to Trustee
	 	 	11	 
	SECTION 105. Acts of Holders
	 	 	12	 
	SECTION 106. Notices, etc., to Trustee and Company
	 	 	13	 
	SECTION 107. Notice to Holders; Waiver
	 	 	13	 
	SECTION 108. Effect of Headings and Table of Contents
	 	 	14	 
	SECTION 109. Successors
	 	 	14	 
	SECTION 110. Separability Clause
	 	 	14	 
	SECTION 111. Benefits of Indenture
	 	 	14	 
	SECTION 112. Governing Law; Waiver of Jury Trial
	 	 	14	 
	SECTION 113. Conflict with Trust Indenture Act
	 	 	14	 
	SECTION 114. Legal Holidays
	 	 	15	 
	SECTION 115. Unclaimed Money; Prescription
	 	 	15	 
	SECTION 116. No Recourse Against Others
	 	 	15	 
	SECTION 117. Multiple Originals
	 	 	15	 
	SECTION 118. No Adverse Interpretation of Other Agreements
	 	 	15	 
	SECTION 119. Securities Denominated in a Currency Other Than United States Dollars
	 	 	16	 
	 
	 	 	 	 
	ARTICLE TWO SECURITY FORMS
	 	 	 	 
	 
	 	 	 	 
	SECTION 201. Forms Generally
	 	 	16	 
	SECTION 202. Forms of Securities
	 	 	16	 
	SECTION 203. Form of Trustee’s Certificate of Authentication
	 	 	17	 
	 
	 	 	 	 
	ARTICLE THREE THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 301. Title and Terms
	 	 	17	 
	SECTION 302. Denominations
	 	 	20	 
	SECTION 303. Execution, Authentication, Delivery and Dating
	 	 	20	 
	SECTION 304. Temporary Securities
	 	 	21	 
	SECTION 305. Registration, Registration of Transfer and Exchange
	 	 	21	 
	SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	23	 
	SECTION 307. Payment of Interest; Interest Rights Preserved
	 	 	24	 
	SECTION 308. Persons Deemed Owners
	 	 	25	 
	SECTION 309. Cancellation
	 	 	27	 
















 






	 	 	 	 	 
	 	 	Page	 
	SECTION 310. Computation of Interest
	 	 	27	 
	SECTION 311. Compliance with Certain Laws and Regulations
	 	 	27	 
	 
	 	 	 	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE
	 	 	 	 
	 
	 	 	 	 
	SECTION 401. Satisfaction and Discharge of Indenture
	 	 	28	 
	SECTION 402. Application of Trust Money
	 	 	29	 
	 
	 	 	 	 
	ARTICLE FIVE REMEDIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 501. Events of Default
	 	 	29	 
	SECTION 502. Acceleration of Maturity; Rescission and Annulment
	 	 	30	 
	SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	31	 
	SECTION 504. Trustee May File Proofs of Claim
	 	 	32	 
	SECTION 505. Trustee May Enforce Claims Without Possession of Securities
	 	 	32	 
	SECTION 506. Application of Money Collected
	 	 	33	 
	SECTION 507. Limitation on Suits
	 	 	33	 
	SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
	 	 	34	 
	SECTION 509. Restoration of Rights and Remedies
	 	 	34	 
	SECTION 510. Rights and Remedies Cumulative
	 	 	34	 
	SECTION 511. Delay or Omission Not Waiver
	 	 	34	 
	SECTION 512. Control by Holders
	 	 	35	 
	SECTION 513. Waiver of Past Defaults
	 	 	35	 
	SECTION 514. Waiver of Stay or Extension Laws
	 	 	35	 
	 
	 	 	 	 
	ARTICLE SIX THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 601. Certain Duties and Responsibilities
	 	 	36	 
	SECTION 602. Notice of Defaults
	 	 	37	 
	SECTION 603. Certain Rights of Trustee
	 	 	37	 
	SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities
	 	 	39	 
	SECTION 605. Trustee May Hold Securities
	 	 	39	 
	SECTION 606. Money Held in Trust
	 	 	39	 
	SECTION 607. Compensation and Reimbursement
	 	 	40	 
	SECTION 608. Corporate Trustee Required; Eligibility
	 	 	41	 
	SECTION 609. Resignation and Removal; Appointment of Successor
	 	 	41	 
	SECTION 610. Acceptance of Appointment by Successor
	 	 	42	 
	SECTION 611. Merger, Conversion, Consolidation or Succession to Business
	 	 	42	 
	 
	 	 	 	 
	ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	 	 
	 
	 	 	 	 
	SECTION 701. Disclosure of Names and Addresses of Holders; Holders’ List
	 	 	43	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 702. Reports by Trustee
	 	 	43	 
	SECTION 703. Reports by Company
	 	 	44	 
	 
	 	 	 	 
	ARTICLE EIGHT MERGER, CONSOLIDATION AND SALE OF ASSETS
	 	 	 	 
	 
	 	 	 	 
	SECTION 801. Company May Consolidate, etc., Only on Certain Terms
	 	 	44	 
	SECTION 802. Successor Substituted
	 	 	45	 
	 
	 	 	 	 
	ARTICLE NINE SUPPLEMENTAL INDENTURES
	 	 	 	 
	 
	 	 	 	 
	SECTION 901. Supplemental Indentures Without Consent of Holders
	 	 	45	 
	SECTION 902. Supplemental Indentures and Waivers With Consent of Holders
	 	 	47	 
	SECTION 903. Execution of Supplemental Indentures
	 	 	47	 
	SECTION 904. Effect of Supplemental Indentures
	 	 	48	 
	SECTION 905. Conformity with Trust Indenture Act
	 	 	48	 
	SECTION 906. Reference in Securities to Supplemental Indentures
	 	 	48	 
	SECTION 907. Notice of Supplemental Indentures
	 	 	48	 
	SECTION 908. Record Date
	 	 	48	 
	 
	 	 	 	 
	ARTICLE TEN COVENANTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 1001. Payment of Principal, Premium, if any, and Interest
	 	 	49	 
	SECTION 1002. Maintenance of Office or Agency
	 	 	49	 
	SECTION 1003. Money for Security Payments to Be Held in Trust
	 	 	49	 
	SECTION 1004. Corporate Existence
	 	 	50	 
	SECTION 1005. Statement by Officers as to Compliance
	 	 	50	 
	SECTION 1006. Limitation on Liens
	 	 	50	 
	 
	 	 	 	 
	ARTICLE ELEVEN REDEMPTION AND REPAYMENT OF SECURITIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 1101. Applicability of Article
	 	 	53	 
	SECTION 1102. Election to Redeem; Notice to Trustee
	 	 	53	 
	SECTION 1103. Selection by Trustee of Securities to be Redeemed
	 	 	53	 
	SECTION 1104. Notice of Redemption
	 	 	54	 
	SECTION 1105. Deposit of Redemption Price
	 	 	55	 
	SECTION 1106. Securities Payable on Redemption Date
	 	 	55	 
	SECTION 1107. Securities Redeemed in Part
	 	 	55	 
	SECTION 1108. Provisions with Respect to any Sinking Funds
	 	 	55	 
	SECTION 1109. Applicability of Early Repayment Provisions
	 	 	57	 
	SECTION 1110. Repayment of Securities
	 	 	57	 
	SECTION 1111. Exercise of Option
	 	 	57	 
	SECTION 1112. When Securities Presented for Repayment Become Due and Payable
	 	 	57	 
	SECTION 1113. Securities Repaid in Part
	 	 	58	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE TWELVE LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 	 
	 
	 	 	 	 
	SECTION 1201. Company’s Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	58	 
	SECTION 1202. Legal Defeasance and Discharge
	 	 	58	 
	SECTION 1203. Covenant Defeasance
	 	 	58	 
	SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance
	 	 	59	 
	SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions
	 	 	60	 
	SECTION 1206. Reinstatement
	 	 	61	 







iv











 





          THIS INDENTURE is entered into as of December                     , 2009, between XEROX CORPORATION, a
corporation organized and existing under the laws of the State of New York (hereinafter called the
“Company”), having its principal executive office at 45 Glover Avenue, Norwalk, Connecticut
06856, and The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter
called the “Trustee”).




RECITALS OF THE COMPANY




          The Company deems it necessary from time to time to issue its unsecured debentures, notes,
bonds or other evidences of indebtedness (including instruments in global, temporary or definitive
form), to be issued in one or more series (hereinafter called the “Securities”) as
hereinafter set forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.




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




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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




ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION




SECTION 101. Definitions.




          For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




          “Act,” when used with respect to any Holder, has the meaning specified in Section 105.




          “Affiliate” means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative of the foregoing.




          “Authorized Newspaper” means a newspaper of general circulation in the relevant area,
printed in the English language and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an
Authorized Newspaper are authorized hereunder, they may be made (unless otherwise










 



2

expressly provided herein) on the same or different days of the week and in the same or
different Authorized Newspapers.




          “Bankruptcy Law” means Title 11, United States Bankruptcy Code of 1978, as amended, or
any similar United States federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or
change in any such law.




          “Board of Directors” means, as to any Person, the board of directors or similar
governing body of such Person or any duly authorized committee thereof or any director or directors
and/or officer or officers of such Person to whom that board or committee shall have duly delegated
its authority.




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




          “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in The City of New York or Place of Payment are authorized or
obligated by law or executive order to close.




          “Capitalized Lease Obligation” means, as to any Person, the obligations of such Person
under a lease that are required to be classified and accounted for as capital lease obligations
under GAAP and, for purposes of this definition, the amount of such obligations at any date shall
be the capitalized amount of such obligations at such date, determined in accordance with GAAP.




          “Capital Markets Debt” means any Indebtedness that is a security (other than
syndicated commercial loans) that is eligible for resale in the United States pursuant to Rule 144A
under the Securities Act or outside the United States pursuant to Regulation S of the Securities
Act or a security (other than syndicated commercial loans) that is sold or subject to resale
pursuant to a registration statement under the Securities Act.




          “Capital Stock” means:





     (1) with respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not voting) of
corporate stock, including each class of Common Stock and Preferred Stock of such Person;
and




     (2) with respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.



          “Commission” means the Securities and Exchange Commission.




          “Common Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting)










 



3

of such Person’s common stock, whether outstanding on January 17, 2002 or issued thereafter,
and includes, without limitation, all series and classes of such common stock.




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




          “Company Request” or “Company Order” means a written request or order signed
in the name of the Company by its Chairman, any Vice Chairman, its President, any Vice President,
its Treasurer or an Assistant Treasurer, and delivered to the Trustee.




          “Consolidated Net Worth” means, at any time, as to a given entity (a) the sum of the
amounts appearing on the latest consolidated balance sheet of such entity and its subsidiaries,
prepared in accordance with generally accepted accounting principles consistently applied, as
(i) the par or stated value of all outstanding Capital Stock (including Preferred Stock),
(ii) capital paid-in and earned surplus or earnings retained in the business plus or minus
cumulative translation adjustments, (iii) any unappropriated surplus reserves, (iv) any net
unrealized appreciation of equity investment, and (v) minorities’ interests in equity of
subsidiaries, less (b) treasury stock, plus (c) in the case of the Company, $600.0 million.




          “Corporate Trust Office” means the office of the Trustee, at which at any particular
time its corporate trust business shall be principally administered, which office at the date of
execution of this Indenture is located at 101 Barclay Street, 8W, New York, New York 10286,
Attention: Corporate Trust Division — Corporate Finance Unit, or such other address as the Trustee
may designate from time to time by notice to the Company, or the principal corporate trust office
of any successor Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Company).




          “Coupon Security” means any Security authenticated and delivered with one or more
interest coupons appertaining thereto.




          “Covenant Defeasance” has the meaning specified in Section 1203.




          “Custodian” means the Trustee, in its capacity as custodian for the Depositary or its
nominee.




          “Default” means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.




          “Defaulted Interest” has the meaning specified in Section 307.




          “Depositary”, with respect to a series of Securities, unless otherwise provided for
that series, means The Depository Trust Company, its nominees and their respective successors.




          “Disqualified Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder thereof), or upon the happening of any event (other than an event which
would constitute an asset sale or change of control), matures or is mandatorily










 



4

redeemable (other than such Capital Stock that will be redeemed with Qualified Capital Stock),
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the
holder thereof (except, in each case, upon the occurrence of an asset sale or change of control) on
or prior to the final maturity date of a series of Securities.




          “Event of Default” has the meaning specified in Section 501.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto.




          “fair market value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction.




          “Foreign Subsidiary” means a Restricted Subsidiary that is incorporated or formed in a
jurisdiction other than the United States or a State thereof or the District of Columbia.




          “Fully Registered Security” means any Security registered as to principal and
interest.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, which are in effect from time to time.




          “Global Security” means a Security issued to evidence all or a part of any series of
Securities which is executed by the Company and authenticated by the Trustee and delivered to the
Depositary or pursuant to the Depositary’s instructions, all in accordance with this Indenture and
pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee
and which shall represent the amount of uncertificated Securities of such series as specified
therein.




          “Holder” when used with respect to any Security means a Person in whose name such
Security is registered in a Security Register and when used with respect to any Coupon Security,
means the bearer thereof.




          “Indebtedness” means with respect to any Person, without duplication:





     (1) all indebtedness of such Person for borrowed money;




     (2) all indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments;




     (3) all Capitalized Lease Obligations of such Person;









 



5



     (4) all indebtedness of such Person issued or assumed as the deferred purchase price
of property, all conditional sale obligations and all indebtedness under any title retention
agreement (but excluding trade accounts payable incurred in the ordinary course with a
maturity of not greater than 90 days);




     (5) all indebtedness for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction (other than obligations with respect to
letters of credit supporting obligations not for money borrowed entered into in the ordinary
course of business of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than the fifth
business day following payment on the letter of credit);




     (6) guarantees and other contingent obligations in respect of Indebtedness referred to
in clauses (1) through (5) above and clause (8) below;




     (7) all indebtedness of any other Person of the type referred to in clauses (1)
through (6) which are secured by any Lien on any property or asset of such Person, the
amount of such indebtedness being deemed to be the lesser of the fair market value of such
property or asset or the amount of the indebtedness so secured;




     (8) all indebtedness under currency agreements and interest swap agreements of such
Person; and




     (9) all Disqualified Capital Stock issued by such Person or any Preferred Stock of
such Person or any Restricted Subsidiary of such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock or Preferred Stock being equal to the greater
of its voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any.



          For purposes of this Indenture, the “maximum fixed repurchase price” of any Disqualified
Capital Stock or Preferred Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such
Disqualified Capital Stock or Preferred Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock or Preferred Stock, such fair
market value shall be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Capital Stock or Preferred Stock.




          Accrual of interest, accrual of dividends, the accretion of accreted value, the payment of
interest in the form of additional Indebtedness and the payment of dividends in the form of
additional shares of Preferred Stock will not be deemed to be an incurrence of Indebtedness. The
amount of any Indebtedness outstanding as of any date shall be (i) the accreted value of the
Indebtedness in the case of any Indebtedness issued with original issue discount and (ii) the
principal amount or liquidation preference thereof.




          “Indenture” has the meaning specified in the first paragraph hereto.










 



6




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




          “Legal Defeasance” has the meaning specified in Section 1202.




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




          “Maturity” or “Maturity Date” means, with respect to any Security, the date on
which any principal of such Security becomes due and payable as therein or herein provided, whether
at the Stated Maturity with respect to such principal or by declaration of acceleration, call for
redemption or purchase or otherwise.




          “Officers’ Certificate” means, with respect to any Person, a certificate signed by the
chief executive officer, the president or any vice president and the chief financial officer, the
treasurer, any assistant treasurer or the controller of such Person that shall comply with
applicable provisions of this Indenture and delivered to the Trustee.




          “Opinion of Counsel” means a written opinion of counsel, who may be an officer,
counsel or employee of the Company, and who shall be reasonably acceptable to the Trustee.




          “Original Issue Discount Security” means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502.




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





     (1) such Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;




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




     (3) Securities, except to the extent provided in Sections 1202 and 1203, with
respect to which the Company has effected Legal Defeasance and/or Covenant
Defeasance as provided in Article Twelve with respect to such Securities; and




     (4) such Securities, in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any









 



7



such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands the Securities are valid obligations of the Company;


provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand, authorization,
direction, consent, notice or waiver hereunder, and for the purpose of making the calculations
required by Section 313 of the Trust Indenture Act, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in making such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to Securities and that the pledgee is not the Company or any other
obligor upon Securities or any Affiliate of the Company or such other obligor.




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




          “Person” means an individual, partnership, corporation, limited liability company,
unincorporated organization, trust or joint venture, or a governmental agency or political
subdivision thereof.




          “Place of Payment” means a city or any political subdivision thereof designated as
such pursuant to Section 301.




          “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 306 in
exchange for a mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security.




          “Preferred Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.




          “Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.




          “Redemption Date,” when used with respect to any Security to be redeemed, in whole or
in part, means the date fixed for such redemption by or pursuant to this Indenture.




          “Redemption Price,” when used with respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.










 



8




          “Registered Coupon Security” means any Coupon Security registered as to principal.




          “Registered Security” means any Security registered in the Security Register.




          “Regular Record Date” for the interest payable on any Security on any Interest Payment
Date means the date, if any, specified in such Security as the “Regular Record Date”.




          “Repayment Date”, when used with respect to any Security to be repaid, means the date
fixed for such repayment pursuant to such Security.




          “Repayment Price”, when used with respect to any Security to be repaid, means the
price at which it is to be repaid pursuant to such Security.




          “Responsible Officer,” when used with respect to the Trustee, means any officer
assigned to the Corporate Trust Division — Corporate Finance Unit (or any successor division or
unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct
responsibility for the administration of this Indenture or any other officer of the Trustee to whom
any corporate trust matter is referred because of such officer’s knowledge of and familiarity with
the particular subject.




          “Restricted Subsidiary” of any Person means any Subsidiary of such Person which at the
time of determination is not an Unrestricted Subsidiary.




          “Securities” has the meaning specified in the recitals to this Indenture.




          “Securities Act” means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto.




          “Security Register” and “Security Registrar” have the respective meanings
specified in Section 305.




          “Significant Subsidiary,” with respect to any Person, means any Restricted Subsidiary
of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02 of
Regulation S-X under the Exchange Act as such Regulation is in effect on January 17, 2002.




          “Special Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 307.




          “Specified Subsidiary” means any Subsidiary of the Company from time to time having a
Consolidated Net Worth Amount of at least $100.0 million; provided, however, that each of Xerox
Financial Services, Inc., Xerox Credit Corporation and any other Subsidiary principally engaged in
any business or businesses other than development, manufacture and/or marketing of (x) business
equipment (including, without limitation, reprographic, computer (including software) and facsimile
equipment), (y) merchandise or (z) services (other than financial services) shall be excluded as a
“Specified Subsidiary” of the Company.










 



9




          “Stated Maturity” when used with respect to any Indebtedness or any installment of
interest thereon means the dates specified in such Indebtedness as the fixed date on which the
principal of or premiums on such Indebtedness or such installment of interest is due and payable,
and shall not include any contingent obligations to repay, redeem or repurchase any such interest
or principal prior to the date originally scheduled for the payment thereof.




          “Subordinated Indebtedness” means Indebtedness of the Company that is subordinated or
junior in right of payment to the Securities.




          “Subsidiary,” with respect to any Person, means:





     (1) any corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person; or




     (2) any other Person of which at least a majority of the voting interest under
ordinary circumstances is at the time, directly or indirectly, owned by such Person.



          “Surviving Entity” has the meaning specified in Section 801(a).




          “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended.




          “Trustee” means the Person named as the “Trustee” in the first paragraph hereto until
a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean such successor Trustee 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 Securities of such series.




          “Unregistered Security” means any Coupon Security, or bearer Security, not registered
as to principal.




          “Unrestricted Subsidiary” of any Person means:





     (1) the Subsidiary to be so designated has total assets of $1,000 or less or any
Subsidiary of such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner
provided below; and




     (2) any Subsidiary of an Unrestricted Subsidiary.



          The Board of Directors may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock
of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated; provided that each
Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or otherwise










 



10

become directly or indirectly liable with respect to any Indebtedness pursuant to which the
lender has recourse to any of the assets of the Company or any of its Restricted Subsidiaries.




          The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary
only if immediately before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing.




          Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the foregoing provisions.




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




SECTION 102. Rules of Construction. 




          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 terms used herein which are defined in the Trust Indenture Act or the rules and
regulations of the Commission thereunder, either directly or by reference therein, have the
meanings assigned to them therein;




          (c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;




          (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;




          (e) references to any Article, Section or other subdivision in this Indenture, unless
otherwise described, are references to an Article, Section or subdivision of this Indenture;










 



11




          (f) “or” is not exclusive;




          (g) words used herein implying any gender shall apply to every gender; and




          (h) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness.




SECTION 103. Compliance Certificates and Opinions.




          Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.




          Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than pursuant to Section 1005) shall include:





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




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and




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



SECTION 104. Form of Documents Delivered to Trustee.




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




          Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or










 



12

opinion or representations with respect to the matters upon which his certificate or opinion
is based are erroneous. In giving such opinion, such counsel may rely upon opinions of outside
counsel reasonably satisfactory to the Trustee. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.




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




SECTION 105. Acts of Holders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by Holders of Securities
in person or by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act” of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 105.




          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.




          (c) The principal amount and serial numbers of Securities held by any Person, and the date of
holding the same, shall be proved by the applicable Security Register.




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










 



13




SECTION 106. Notices, etc., to Trustee and Company.




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





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




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



          The Trustee shall have the right, but shall not be required, to rely upon and comply with
instructions and directions sent by e-mail, facsimile and other similar unsecured electronic
methods by persons believed by the Trustee to be authorized to give instructions and directions on
behalf of the Company. The Trustee shall have no duty or obligation to verify or confirm that the
person who sent such instructions or directions is, in fact, a person authorized to give
instructions or directions on behalf of the Company; and the Trustee shall have no liability for
any losses, liabilities, costs or expenses incurred or sustained by the Company as a result of such
reliance upon or compliance with such instructions or directions. The Company agrees to assume all
risks arising out of the use of such electronic methods to submit instructions and directions to
the Trustee, including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk of interception and misuse by third parties.




SECTION 107. Notice to Holders; Waiver.




          Where this Indenture provides notice of any event to Holders by the Company or the Trustee,
such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing
and delivered electronically or mailed, first-class postage prepaid, to each Holder affected by
such event, at its address as it appears in the applicable Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of
such notice. In any case where notice to Holders is delivered electronically or given by mail,
neither the failure to electronically transmit or mail such notice, nor any defect in any notice so
transmitted or mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice delivered to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder when so mailed or delivered, whether or
not such Holder actually receives such notice. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.










 



14




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




SECTION 108. Effect of Headings and Table of Contents.




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




SECTION 109. Successors.




          All agreements of the Company in this Indenture and any Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.




SECTION 110. Separability Clause.




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




SECTION 111. Benefits of Indenture.




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




SECTION 112. Governing Law; Waiver of Jury Trial.




          THIS INDENTURE AND ALL SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




SECTION 113. Conflict with Trust Indenture Act.




          If any provision of this Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act or another provision which is required or deemed to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such provision or requirement of the
Trust Indenture Act shall control.




          If any provision of this Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.










 



15




SECTION 114. Legal Holidays.




          Except as may otherwise be provided for a series of Securities, in any case where any Interest
Payment Date, Redemption Date, Repayment Date, date established for the payment of Defaulted
Interest, Stated Maturity or Maturity Date of any Security shall not be a Business Day in a Place
of Payment, then (notwithstanding any other provision of this Indenture or of the Securities of a
series) payment of interest or principal (and premium, if any) need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repayment Date, date established for the payment of
Defaulted Interest, Stated Maturity or Maturity Date. In such event, no interest shall accrue with
respect to such payment for the period from and after such Interest Payment Date, Repayment Date,
Redemption Date, date established for the payment of Defaulted Interest, Stated Maturity or
Maturity Date, as the case may be, to the next succeeding Business Day and, with respect to any
Interest Payment Date, interest for the period from and after such Interest Payment Date shall
accrue with respect to the next succeeding Interest Payment Date. If a regular record date is a
date that is not a Business Day, such record date shall not be affected.




SECTION 115. Unclaimed Money; Prescription.




          If money deposited with the Trustee or any applicable agent for the payment of principal of,
premium, if any, or interest on any Security remains unclaimed for two years, the Trustee and such
Paying Agent shall return the money to the Company upon its written request. After that, Holders
entitled to the money must look to the Company for payment unless applicable abandoned property law
designates another Person; and all liability of the Trustee and such Paying Agent shall cease.
Other than as set forth in this Section, this Indenture does not provide for any periods for the
escheatment of the payment of principal of, premium, if any, or interest and on any Security.




SECTION 116. No Recourse Against Others.




          No past, present or future director, officer, employee, promoter, adviser, incorporator or
shareholder of the Company, as such, shall have any liability for any obligations of the Company
under any Security or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of any Security by accepting a Security waives and
releases all such liability, to the extent permitted by applicable law. The waiver and release are
part of the consideration for issuance of the Securities.




SECTION 117. Multiple Originals.




          The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.




SECTION 118. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan, security or debt
agreement of the Company. No such indenture, loan, security or debt agreement may be used to
interpret this Indenture.










 



16




SECTION 119. Securities Denominated in a Currency Other Than United States Dollars.




          For the purposes of calculating the principal amount of Securities denominated in a currency
other than U.S. dollars (including units consisting of multiple currencies) for any purpose under
this Indenture the principal amount of such Securities at any time Outstanding shall be deemed to
be that amount of U.S. dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange for such currency into U.S. dollars as of the date of any such calculation.




ARTICLE TWO




SECURITY FORMS




SECTION 201. Forms Generally. 




          The Securities of each series and the certificates of authentication thereon shall have such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.




          The definitive Securities, if any, shall be printed, lithographed or engraved or produced by
any combination of these methods on steel engraved borders or otherwise or may be produced in any
other manner as the Company may elect, to the extent, if such Securities are listed thereon,
permitted by the rules of any securities exchange, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.




SECTION 202. Forms of Securities. 




          Each Security shall be in one of the forms approved from time to time by or pursuant to a
Board Resolution, or established in one or more indentures supplemental hereto. Prior to the
delivery of a Security to the Trustee for authentication in any form approved by or pursuant to a
Board Resolution, the Company shall deliver to the Trustee the Board Resolution by or pursuant to
which such form of Security has been approved, which Board Resolution shall have attached thereto a
true and correct copy of the form of Security which has been approved by or pursuant thereto, or,
if a Board Resolution authorizes a specific officer or officers to approve a form of Security, a
certificate of such officer or officers approving the form of Security attached thereto. Any form
of Security approved by or pursuant to a Board Resolution must be acceptable as to form to the
Trustee, such acceptance to be evidenced by a certificate signed by a Responsible Officer of the
Trustee and delivered to the Company or by the execution by the Trustee of the certificate of
authentication thereon.




          If any Security of a series is issuable as a Global Security (in whole or in part), such
Global Security may provide that it shall represent the aggregate amount of Outstanding










 



17

Securities from time to time endorsed thereon and may also provide that the aggregate amount
of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges
or may from time to time be increased to reflect the issuance of additional uncertificated
Securities of such series. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by
the Trustee pursuant to such instructions and in such manner as shall be specified in such Global
Security or in or pursuant to the Company Order to be delivered to the Trustee pursuant to Section
303.




SECTION 203. Form of Trustee’s Certificate of Authentication. 




          The Trustee’s certificate of authentication for any Security issued pursuant to this Indenture
shall be substantially in the following form:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          This is one of the Securities, of the series designated herein, described in the within
mentioned Indenture.




	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

THE BANK OF NEW YORK MELLON, as Trustee
	 	 
	 
	 	 	 	 
	 

	 	Authorized Signatory	 	 






ARTICLE THREE




THE SECURITIES




SECTION 301. Title and Terms. 




          The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.




          The Securities may be issued in one or more series. All Securities of each series issued
under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof
with respect to such series without preference, priority or distinction on account of the actual
time or times of the authentication and delivery or Maturity of the Securities of such series. All
Securities of any one series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Securities of such series up to the maximum
aggregate principal amount authorized at the time the series is reopened. There shall










 



18

be established in or pursuant to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,





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




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




     (3) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security is registered at the close of business on
the Regular Record Date for such interest;




     (4) the date or dates or the periodic intervals on which the principal and premium, if
any, of the Securities of such series is payable, or the method of determination thereof;




     (5) the rate or rates (which may be fixed or variable), or the method of determination
thereof, at which the Securities of such series shall bear interest, if any, which, if so
provided in or pursuant to the authority granted by the resolution of the Board of Directors
with respect to such series, may be determined by the Company from time to time and set
forth in the Securities of such series issued from time to time, the date or dates from
which such interest shall accrue, or the method of determination thereof, the Interest
Payment Dates on which such interest shall be payable and the record dates, if any, for the
determination of Holders to whom interest is payable;




     (6) the place or places where the principal of, and premium, if any, and interest, if
any, if other than as set forth in Section 301, on Securities of such series shall be
payable;




     (7) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of such series may be redeemed or repaid, in whole or in
part, at the option of the Company or a Holder thereof, pursuant to any sinking fund or
otherwise;




     (8) the obligation or the right, if any, of the Company to redeem, purchase or repay
Securities of such series pursuant to any 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 the terms and conditions upon which Securities of such series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;




     (9) if other than denominations of $2,000 and integral multiples of $1,000 in excess
thereof, the denominations in which Securities of such series shall be issuable;









 



19



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




     (11) if the principal of or premium, if any, or interest on any Securities of the
series is to be payable, at the election of the Company or the Holder thereof, in one or
more currencies or currency units other than that or those in which such Securities are
stated to be payable, the currency, currencies or currency units in which the principal of
or premium, if any, or interest on such Securities as to which such election is made shall
be payable, the periods within which and the terms and conditions upon which such election
is to be made and the amount so payable (or the manner in which such amount shall be
determined);




     (12) whether the Securities of the series shall be issued (a) as other than Fully
Registered Securities or (b) in whole or in part in the form of a Global Security or
Securities and, in such case, (i) the terms and conditions, if any, upon which such Global
Security or Securities may be exchanged in whole or in part for other definitive Securities,
(ii) the Depositary for such Global Security or Securities and (iii) whether such Global
Security shall be definitive or temporary;




     (13) any addition to, deletion from or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant
to Section 502;




     (14) any addition to, deletion from or change in the covenants set forth in Article
Ten which applies to Securities of the series;




     (15) if other than the principal amount thereof, the portion of the principal amount
of an Original Issue Discount Security which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 502;




     (16) whether the Securities of the series will be guaranteed by any Person or Persons
and, if so, the identity of such Person or Persons, the terms and conditions upon which such
Securities shall be guaranteed and, if applicable, the terms and conditions upon which such
guarantees may be subordinated to other indebtedness of the respective guarantors;




     (17) whether the Securities of the series will be secured by any collateral and, if
so, the terms and conditions upon which such Securities shall be secured and, if applicable,
upon which such liens may be subordinated to other liens securing other indebtedness of the
Company or any guarantor:




     (18) if other than The Bank of New York Mellon is to act as Trustee for the Securities
of such series, the name and Corporate Trust Office of such Trustee; and




     (19) any and all other terms of such series, including denominations of securities in
currencies other than U.S. dollars (including units consisting of multiple currencies)









 



20



and including any election as to any optional provision, which shall be necessary to
complete the form of Security for such series, which shall be one of the forms approved or
established pursuant to Section 202 hereof (which terms shall not be inconsistent with the
provisions of this Indenture).



          The principal of, premium, if any, and interest on the Securities shall be payable at the
office or agency of the Company in the Borough of Manhattan, The City of New York, unless the form
of any such Security shall designate a different place of payment (any such office or place of
payment being herein called the “Place of Payment”); provided, however, and
unless otherwise provided in the form of Security for any series approved or established pursuant
to Section 202, that payment of interest with respect to Registered Securities may be made at the
option of the Company by check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register.




SECTION 302. Denominations. 




          The Securities of each series shall be issuable in such form and denominations as shall be
specified in the form of Security for such series approved or established pursuant to Section 202
or in the Officers’ Certificate delivered pursuant to Section 301. In the absence of any
specification with respect to the Securities of any series, the Securities of such series shall be
issuable only as Fully Registered Securities without coupons in denominations of $2,000 and
integral multiples of $1,000 in excess thereof.




SECTION 303. Execution, Authentication, Delivery and Dating.




          The Securities of any Series shall be executed on behalf of the Company by its chairman, any
vice chairman, its president, a vice president, the treasurer or any assistant treasurer, and
attested by its secretary or an assistant secretary. The signature of any of these officers on the
Securities may be manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.




          Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities.




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Securities.




          Each Security shall be dated the date of its authentication.




          No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by manual signature of a Responsible
Officer, and such certificate upon any Security shall be conclusive evidence, and










 



21

the only evidence, that such Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.




SECTION 304. Temporary Securities. 




          Pending the preparation of definitive Securities of any series, the Company may execute, and
upon receipt of the documents required by Sections 301 and 303, together with a Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denominations, substantially of
the tenor of the definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.




          If temporary Securities of any series are issued, the Company will cause definitive Securities
of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of
the Company in the Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations and of the same tenor. Until so exchanged the temporary
Securities of such series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.




SECTION 305. Registration, Registration of Transfer and Exchange. 




          The Company shall keep or cause to be kept a register (herein sometimes referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of each series of Registered Securities and the
registration of transfers of Registered Securities of such series. Any such 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 information contained in such register or registers shall be
available for inspection by the Trustee at the office or agency to be maintained by the Company as
provided in Section 1002.




          Upon surrender for registration of transfer of any Registered Security of any series at the
office or agency of the Company in the Place of Payment or at the Corporate Trust Office, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of such series of any
authorized denominations and of a like tenor, aggregate principal amount and Stated Maturity.




          Notwithstanding any other provision of this Section 305, unless and until it is exchanged in
whole or in part for Securities in a definitive form, a Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole by the Depositary of
such series to a nominee of such Depositary or by a nominee of such Depositary to










 



22

such Depositary or another nominee of such Depositary or by such Depositary or any such
nominee to a successor Depositary of such series or a nominee of such successor Depositary, and any
such Global Security shall contain a legend to the following effect: “Unless and until this Global
Security is exchanged as a whole or in part for definitive Securities in registered form, this
Global Security may not be transferred except as a whole by the Depositary to a nominee thereof or
by a nominee thereof to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor.”




          Upon the exchange of a Global Security for Securities in definitive form, such Global Security
shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security
pursuant to Section 303 shall be registered in such names and in such authorized denominations and
delivered to the Depositary or to such addresses as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities to the Depositary or to the persons
in whose names such Securities are so registered.




          At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of such series, of any authorized denominations and of a like tenor,
aggregate principal amount and Stated Maturity, upon surrender of the Registered Securities to be
exchanged at the office or agency of the Company in the Place of Payment or at the Corporate Trust
Office. Whenever any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive.




          Upon presentation for registration of any Unregistered Security of any series which by its
terms is registrable as to principal at the office or agency of the Company in the Place of Payment
or at the Corporate Trust Office, such Security shall be registered as to principal in the name of
the Holder thereof and such registration shall be noted on such Security. Any Security so
registered shall be transfer able on the Security Register, upon presentation of such Security at
such office or agency for similar notation thereon, but such Security may, to the extent and under
the circumstances specified pursuant to Section 311, be discharged from registration by being in
like manner transferred to bearer, whereupon transferability by delivery shall be restored.
Unregistered Securities shall continue to be subject to successive registrations and discharges
from registration at the option of the Holders thereof.




          Coupon Securities shall be transferable by delivery except while registered as to principal.
Registration of any Coupon Security shall not affect the transferability by delivery of the coupons
appertaining thereto, which shall continue to be payable to bearer and transferable by delivery.




          At the option of the Holder thereof, Coupon Securities of any series which by their terms are
registrable as to principal and interest may be exchanged for Fully Registered Securities of such
series of any authorized denominations and of a like aggregate principal amount and Stated
Maturity, upon surrender of the Coupon Securities to be exchanged at such office or agency with 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
and to the extent and under the circumstances










 



23

specified pursuant to Section 311, Fully Registered Securities of any series, which by their
terms provide for the issuance of Coupon Securities, may be exchanged for Coupon Securities or
Fully Registered Securities of such series, of any authorized denominations and of a like tenor,
aggregate principal amount and Stated Maturity, upon surrender of the Securities to be exchanged at
such office or agency, and upon payment if the Company shall so require of the charges hereinafter
provided. 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 issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.




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




          Unless otherwise provided in the Securities to be transferred or exchanged, no service charge
shall be made for any registration of transfer or exchange of Securities, but the Company may
(unless otherwise provided in such Securities) require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 1113, or 906 not involving
any transfer.




          The Company shall not be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business 15 days before the
day of selection of Securities of such series to be redeemed under Section 1103 and ending at the
close of business on the day of the mailing of a notice of redemption of Securities of such series
so selected for redemption, or (ii) to register the transfer or exchange of any Securities so
selected for redemption in whole or that part of any Security so selected in the case of Securities
selected for redemption in part.




SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. 




          If (i) any mutilated Security or any Security to which a mutilated coupon is annexed is
surrendered to the Trustee, or if the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security or any coupon appurtenant to a
Coupon Security, and (ii) there is delivered to the Company, the Trustee and the Security Registrar
such security or indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Security or coupon has been acquired by
a bona fide purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or the Coupon Security to which such mutilated, destroyed, lost










 



24

or stolen coupon appertains, a new Security of the same series and of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.




          In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or coupon.




          Upon the issuance of any new Security under this Section 306, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.




          Every new Security (and appurtenant coupon) issued pursuant to this Section 306 in lieu of any
destroyed, lost or stolen Security or coupon shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security or coupon shall be
at any time enforce able by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities and coupons of the same series duly
issued hereunder.




          The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons.




SECTION 307. Payment of Interest; Interest Rights Preserved. 




          Interest on any Fully Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor Securities) is registered on
the Regular Record Date for such interest. Subject to the penultimate paragraph of this Section
307, interest on any Unregistered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Holder of such Unregistered
Security, or the coupon appertaining thereto, as the case may be.




          Any interest on any Fully Registered Security 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 Holder of such Fully Registered Security, on the relevant
Regular Record Date by virtue of his having been such Holder, and such Defaulted Interest shall be
paid by the Company, at its election in each case, as provided in Clause (1) or Clause (2) below:





     (1) The Company may elect to make payments of any Defaulted Interest to the Persons in
whose names any such Fully Registered 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 Fully Registered Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted









 



25



Interest or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 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 at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, notify Holders by causing a
similar notice to be published at least once in an Authorized Newspaper in the Place of
Payment, but such publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Fully Registered Securities (or their respective
Predecessor Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).




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



          Any Defaulted Interest payable in respect of any Security which is not a Fully Registered
Security shall be payable pursuant to such procedures as may be satisfactory to the Trustee in such
manner that there is no discrimination as between the Holders of Fully Registered Securities and
other Securities of the same series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, by publication at least once in any
Authorized Newspaper in the Place of Payment, subject to Section 107.




          Subject to the foregoing provisions of this Section 307, each Security delivered under this
Indenture upon registration of transfer of, or in exchange for, or in lieu of, any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.




SECTION 308. Persons Deemed Owners. 




          Prior to due presentment for registration of transfer of any Registered Security the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for the purpose of
receiving payment of principal of, premium, if any, on, and, if such Registered
















 



26

Security is a Fully Registered Security (subject to Section 307) interest on, such Registered
Security, and for all purposes whatsoever (except the payment of coupons appertaining to any
Registered Coupon Security and the payment of interest payable on presentation of any temporary
Security), whether or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary. The
Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any
Unregistered Security or the Holder of any coupon, whether or not the Security to which such coupon
appertains be registered, as the owner of such Unregistered Security or coupon for the purpose of
receiving payment thereof and for all other purposes whatsoever, whether or not such Unregistered
Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.




          None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests and they shall be protected in acting
or refraining from acting on any such information provided by the Depositary.




          None of the Company, the Trustee, the Paying Agent or the Security Registrar shall have any
responsibility or obligation to any beneficial owner in a Global Security, a Depositary participant
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of
any Depositary participant, with respect to any ownership interest in the Securities or with
respect to the delivery to any Depositary participant, beneficial owner or other Person (other than
the Depositary) of any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities and this Indenture shall be
given or made only to or upon the order of the registered holders (which shall be the Depositary or
its nominee in the case of the Global Security). The rights of beneficial owners in the Global
Security shall be exercised only through the Depositary subject to the applicable procedures. The
Company, the Trustee, the Paying Agent and the Security Registrar shall be entitled to rely and
shall be fully protected in relying upon information furnished by the Depositary with respect to
its members, participants and any beneficial owners. The Company, the Trustee, the Paying Agent
and the Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof,
that is the registered holder of any Global Security for all purposes of this Indenture relating to
such Global Security (including the payment of principal, premium, if any, and interest and
additional amounts, if any, and the giving of instructions or directions by or to the owner or
holder of a beneficial ownership interest in such Global Security) as the sole holder of such
Global Security and shall have no obligations to the beneficial owners thereof. None of the
Company, the Trustee, the Paying Agent or the Security Registrar shall have any responsibility or
liability for any acts or omissions of the Depositary with respect to such Global Security, for the
records of any such depositary, including records in respect of beneficial ownership interests in
respect of any such Global Security, for any transactions between the Depositary and any Depositary
participant or between or among the Depositary, any such Depositary participant and/or any holder
or owner of a beneficial interest in such Global Security, or for any transfers of beneficial
interests in any such Global Security.










 



27




          Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security or shall impair, as between such
Depositary and owners of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of
such Global Security.




SECTION 309. Cancellation. 




          All Securities surrendered for payment, registration of transfer, exchange, repayment or
redemption, and all coupons surrendered for payment, shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee, and any such Securities and coupons, and Securities and
coupons surrendered directly to the Trustee for any such purpose, shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section
309, except as expressly permitted by this Indenture or such Securities. All canceled Securities
and coupons held by the Trustee shall be disposed of in accordance with its standard procedures and
the Trustee shall furnish to the Company a certificate of disposition or, at the written request of
the Company, the Trustee shall deliver such cancelled Securities to the Company. If the Company
shall acquire any of the Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation.




SECTION 310. Computation of Interest. 




          Except as otherwise specified in the form of Security for any series approved or established
pursuant to Section 202 or in the Officers’ Certificate delivered pursuant to Section 301 with
respect to Securities of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.




SECTION 311. Compliance with Certain Laws and Regulations. 




          If any Unregistered Securities are to be issued in any series of Securities, the Company will
provide for arrangements and procedures reasonably designed pursuant to then applicable laws and
regulations, if any, to ensure that Unregistered Securities are sold or resold (in connection with
their original issuance), exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company.




          If any Unregistered Securities are to be issued in any series of Securities, none of the
Trustee, the Paying Agent or the Security Registrar shall have any obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security
(including any transfers between or among Depositary participants, members or beneficial









 



28


owners in any Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.




ARTICLE FOUR




SATISFACTION AND DISCHARGE




SECTION 401. Satisfaction and Discharge of Indenture.




          This Indenture will be discharged with respect to a series of Securities and will cease to be
of further effect (except as to surviving rights of transfer or exchange of such Securities, as
expressly provided for in this Indenture) solely as to all Outstanding Securities of such series
under this Indenture when with respect to such series of Securities:





     (1) either:




     (a) all Securities of such series previously authenticated and delivered (except lost,
stolen or destroyed Securities of such series which have been replaced or paid and
Securities of such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for cancellation; or




     (b) all Securities of such series not theretofore delivered to the Trustee for
cancellation have become due and payable within one year or as a result of delivering a
notice of redemption and the Company has irrevocably deposited or caused to be deposited
with the Trustee cash in U.S. dollars, non-callable U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay and discharge the entire
Indebtedness on the Securities of such series theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Securities of such
series to the date of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at maturity or redemption,
as the case may be;




     (2) the Company has paid all other sums payable with respect to the Securities of such
series under this Indenture by the Company; and




     (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel stating that all conditions precedent under this Indenture relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series
have been complied with.



          Notwithstanding the satisfaction and discharge of this Indenture with respect to the
Securities of a series, the obligations of the Company to the Trustee under Section 607 and, if









 



29


money shall have been deposited with the Trustee pursuant to sub clause (B) of clause (1) of
this Section 401, the obligations of the Trustee under Section 402 and Section 1003 shall survive
such satisfaction and discharge, in each case, with respect to the Securities of such series.




SECTION 402. Application of Trust Money.




          Subject to the provisions of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the provisions of the
applicable series of Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.




ARTICLE FIVE




REMEDIES




SECTION 501. Events of Default.




          “Event of Default,” wherever used herein, means any one of the following events with
respect to any series of Securities:





     (1) the failure to pay interest on any Security when the same becomes due and payable
and the default continues for a continuous period of 30 days;




     (2) the failure to pay the principal of or premium, if any, on any Security, when such
principal or premium becomes due and payable, at maturity, upon redemption, required
repurchase or otherwise;




     (3) a default in the observance or performance of any other covenant or agreement
contained in this Indenture which default continues for a period of 90 days after the
Company, or in the case of a notice from Holders, the Company and the Trustee, receives
written notice specifying the default (and demanding that such default be remedied and
stating that such notice is a “Notice of Default”) from the Trustee or the Holders of at
least 25% of the outstanding principal amount of the Securities of a series (except in the
case of a default with respect to Section 801, which will constitute an Event of Default
with such notice requirement but without such passage of time requirement);




     (4) the entry by a court of competent jurisdiction of (A) a decree or order for relief
in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or (B) a decree or order adjudging the Company or any
Significant Subsidiary bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Significant Subsidiary
under any applicable federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of









 



30



the Company or any Significant Subsidiary or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and any such decree or order for
relief shall continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days; or




     (5) (A) the commencement by the Company or any Significant Subsidiary of a voluntary
case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (B) the Company or any Significant Subsidiary consents to
the entry of a decree or order for relief in respect of the Company or such Significant
Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding against it, (C) the
Company or any Significant Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (D) the Company or any
Significant Subsidiary (x) consents to the filing of such petition or the appointment of, or
taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or such Significant Subsidiary or of any substantial part of
its property, (y) makes an assignment for the benefit of creditors or (z) admits in writing
its inability to pay its debts generally as they become due or (E) the Company or any
Significant Subsidiary takes any corporate action in furtherance of any such actions in this
clause (5).



SECTION 502. Acceleration of Maturity; Rescission and Annulment.




          (a) If an Event of Default (other than an Event of Default specified in clauses (4) or (5)
above with respect to the Company) shall occur and be continuing with respect to any series of
Securities, the Trustee or the Holders of at least 25% in principal amount of Outstanding
Securities of such series may declare the principal of, and premium, if any, and accrued interest
on all Securities of such series under this Indenture to be due and payable by notice in writing to
the Company and, in the case of a notice from Holders, the Trustee, specifying the respective Event
of Default and stating that it is a “notice of acceleration”, and the same shall become immediately
due and payable. If an Event of Default specified in Sections 501(4) or 501(5) with respect to the
Company occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued
and unpaid interest on all of the Outstanding Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee or any Holder.




          (b) At any time after a declaration of acceleration with respect to the Securities of a
series as described in paragraph (a) above, the Holders of a majority in principal amount of
Securities of such series under this Indenture may rescind and cancel such declaration and its
consequences:





     (1) if the rescission would not conflict with any judgment or decree;




     (2) if all existing Events of Default with respect to Securities of such series have
been cured or waived except nonpayment of principal or interest that has become due solely
because of the acceleration;









 



31



     (3) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid; and




     (4) if the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances.



          No such rescission shall affect any subsequent Default or impair any right consequent thereto.




SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.




          The Company covenants that if:




          (a) default is made in the payment of any installment of interest on any Security when such
interest becomes due and payable and such default continues for a period of 30 days,




          (b) default is made in the payment of the principal of (or premium, if any, on) any Security
at the maturity thereof, or




          (c) default is made in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due by the terms of the Securities of any series,



the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holder of any such
Security (or Holders of Securities of any such series in the case of clause (c) above), the whole
amount then due and payable on any such Security (or Securities of any such series in the case of
clause (c) above) for principal, premium if any, and interest, with interest upon the overdue
principal and premium, if any (to the extent that payment of such interest is lawful), and (to the
extent that payment of such interest shall be legally enforceable) upon overdue installments of
interest, at the rate or rates prescribed therefor by the terms of any such Security (or Securities
of any such series in the case of clause (c) above); and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.




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




          If an Event of Default with respect to any series of Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of the 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.










 



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SECTION 504. Trustee May File Proofs of Claim.




          In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon Securities of a series or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal of any
Securities of such 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, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,





     (1) to file and prove a claim for the whole amount of principal (and premium,
if any) and interest owing and unpaid in respect of any Securities of such series
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 of the Securities of such series allowed in such
judicial proceeding, and




     (2) 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 similar official in any such judicial
proceeding is hereby authorized by each Holder with respect to any Securities of
such series of which it is a 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 applicable Holders, to pay 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 607.



          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 any 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 505. Trustee May Enforce Claims Without Possession of Securities.




          All rights of action and claims under this Indenture or any Securities may be prosecuted and
enforced by the Trustee without the possession of any of the 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 and 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
affected Securities in respect of which such judgment has been recovered.










 



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SECTION 506. Application of Money Collected.




          Any money or property collected by the Trustee pursuant to this Article Five or, after an
Event of Default, distributable in respect of the Company’s obligations under this Indenture shall
be applied in the following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of a series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:




          FIRST: To the payment of all amounts due the Trustee, including any predecessor Trustee,
under Section 607;




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




          THIRD: The balance, if any, to the Company.




SECTION 507. Limitation on Suits.




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





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




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




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




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




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


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








 



34


series, or to obtain or to seek to obtain priority or preference over any other Holders of the
Securities of such series, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of Securities of such
series.




SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.




          Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment, as provided herein (including,
if applicable, Article Twelve) and in such Security, of the principal of (and premium, if any, on)
and (subject to Section 307) interest on, such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.




SECTION 509. Restoration of Rights and Remedies.




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




SECTION 510. Rights and Remedies Cumulative.




          Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and, subject to the provisions of Section 507, every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.




SECTION 511. Delay or Omission Not Waiver.




          No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article Five 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.










 



35




SECTION 512. Control by Holders.




          The Holders of not less than a majority in principal amount of the Outstanding Securities of a
series shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series; provided that





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




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




     (3) the Trustee need not take any action which might involve it in personal liability
or be unjustly prejudicial to the Holders of the Securities of such series not consenting.



SECTION 513. Waiver of Past Defaults.




          The Holders of not less than a majority in principal amount of the Outstanding Securities of a
series may on behalf of the Holders of all Securities of such series waive any past Default or
Event of Default hereunder and its consequences, except a Default or Event of Default:





     (1) in respect of the payment of the principal of (or premium, if any, on) or interest
on any Security, or




     (2) in respect of a covenant or provision of this Indenture which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
affected.



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




SECTION 514. Waiver of Stay or Extension Laws.




          The Company covenants (to the extent that it may lawfully do so) that it shall 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 it shall
not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had been enacted.










 



36




ARTICLE SIX




THE TRUSTEE




SECTION 601. Certain Duties and Responsibilities.




          (a) Except during the continuance of an Event of Default with respect to a series of
Securities,





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




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



          (b) In case an Event of Default with respect to a series of Securities has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own affairs with respect to a
series of Securities.




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





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




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




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









 



37


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




          (e) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 601.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




          (g) The Trustee shall not be responsible for the application of any money by any Paying Agent
other than the Trustee.




SECTION 602. Notice of Defaults.




          Within 90 days after the occurrence of any Default with respect to a series of Securities
under this Indenture, the Trustee shall transmit in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, notice of such Default hereunder known to the Trustee,
to Holders of Securities of such series unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default or Event of Default in the
payment of the principal of (or premium, if any, on) or interest on any Security, the Trustee shall
be protected in withholding such notice if and so long as a trust committee and/or a committee of
Responsible Officers of the Trustee in good faith determines that the withholding of such notice is
in the interest of the Holders of such Securities; and provided further that in the
case of any Default or Event of Default of the character specified in Section 501(3), no such
notice to Holders shall be given until at least 30 days after the occurrence thereof.




SECTION 603. Certain Rights of Trustee.




          Subject to the provisions of Sections 601:





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




     (2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;




     (3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any









 



38



action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;




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




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




     (6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled at all
reasonable times to examine the books, records and premises of the Company personally or by
agent or attorney at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;




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




     (8) the Trustee shall not be liable for any action taken, suffered 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;




     (9) the Trustee shall not be deemed to have notice or be charged with knowledge of any
default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of such default or Event of Default from the Company or any
Holder is received by a Responsible Officer of the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;




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




     (11) the Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may be









 



39



signed by any person authorized to sign an Officers’ Certificate, including any person
specified as so authorized in any such certificate previously delivered and not superseded;




     (12) anything in this Indenture notwithstanding, in no event shall the Trustee be
liable for special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to loss of profit), even if the Trustee has been advised as to
the likelihood of such loss or damage and regardless of the form of action; and




     (13) the Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its control, including, without limitation, any
provision of any future law or regulation or any future act of any governmental authority,
acts of God, earthquakes, fire, flood, terrorism, wars and other military disturbances, acts
of civil or military authority, governmental action, sabotage, epidemics, riots,
interruptions, loss or malfunctions of utilities, computer (hardware or software) or
communication services, accidents or labor disputes; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.



SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities.




          The recitals contained herein and in the Securities, except for the Trustee’s certificates of
authentication, shall be taken as the statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in any Statement of Eligibility of Form
T-1 supplied or to be supplied to the Company are or will be, as the case may be, true and
accurate, subject to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof.




SECTION 605. Trustee May Hold Securities.




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




SECTION 606. Money Held in Trust.




          Cash in U.S. dollars or U.S. Government Obligations held by the Trustee in trust hereunder
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 such cash or U.S. Government Obligations received by it
hereunder except as otherwise agreed in writing with the Company.










 



40




SECTION 607. Compensation and Reimbursement.




          The Company agrees:





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




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and of all Persons
not regularly in its employ), except any such expense, disbursement or advance as may be
attributable to its gross negligence or willful misconduct; and




     (3) to indemnify each of the Trustee and its officers, agents, directors and employees
for, and to hold it harmless against, any and all loss, damage, claims, liability or
expense, including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), incurred without gross negligence or willful misconduct on its part,
arising out of or in connection with the acceptance, administration or enforcement of this
trust, including the costs and expenses of defending itself against any claim (whether
asserted by the Company, or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder or in connection with
enforcing the provisions of this Section 607.


The obligations of the Company under this Section 607 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 indebtedness. In addition to, but without prejudice to its other
rights under this Indenture, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Sections 501(4) and (5), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law. The provisions of this Section 607 shall survive the satisfaction
and discharge of the Securities, the termination for any reason of this Indenture, and the
resignation or removal of the Trustee. As security for the performance of such obligations of the
Company, the Trustee shall have a claim and lien prior to 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 (and premium, if any, on) or interest on particular Securities.




     “Trustee” for purposes of this Section shall include any predecessor Trustee and, if at any
time there is more than one Trustee, “Trustee” for purposes of this Section as used with respect to
Securities of any series shall mean the Trustee, including any predecessor Trustee, with respect to
Securities of such series; provided, however, that the negligence, willful misconduct or bad faith
of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.









 



41


SECTION 608. Corporate Trustee Required; Eligibility.




          There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee
under Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital and surplus of
at least $100.0 million. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 608, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee with respect to
any series of Securities shall cease to be eligible in accordance with the provisions of this
Section 608, it shall resign immediately with respect to such series of Securities in the manner
and with the effect hereinafter specified in this Article Six.




SECTION 609. Resignation and Removal; Appointment of Successor.




          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article Six shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 610.




          (b) The Trustee may resign at any time by giving at least 60 days prior written notice
thereof to the Company addressed to the Company. If the instrument of acceptance by a successor
Trustee required by Section 610 shall not have been delivered to the Trustee within 90 days after
the giving of such notice of resignation or any removal of the Trustee, the resigning or removed
Trustee may petition any court of competent jurisdiction for the appointment of a successor
Trustee.




          (c) The Trustee with respect to any series of Securities may be removed at any time by Act of
the Holders of not less than a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company addressed to each of the Company and Trustee.




          (d) If at any time:





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




     (2) the Trustee shall cease to be eligible under Section 608 with respect to any
series of Securities and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security of such series for at least
six months, or




     (3) the Trustee shall become incapable of acting with respect to any series of
Securities 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,









 



42

then, in any such case, (i) the Company may remove the Trustee with respect to such series, or (ii)
subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of itself and 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.




          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause with respect to the Securities of a series, the
Company shall promptly appoint a successor Trustee for such series of Securities. If, within one
year after such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee of the Securities of such series and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company or the Holders of
the Securities of such series and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.




          (f) The Company shall give notice of each resignation and each removal of the Trustee and
each appointment of a successor Trustee to the Holders of each affected series of Securities in the
manner provided for in Section 107. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.




SECTION 610. Acceptance of Appointment by Successor.




          Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and, thereupon, the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee,
such retiring Trustee shall, provided all sums owing to the Trustee hereunder have been paid and
are subject to its lien provided for in Section 607, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts. No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and eligible under this
Article Six.




SECTION 611. Merger, Conversion, Consolidation or Succession to Business.




          Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the









 



43


corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Person shall be otherwise qualified and eligible under this Article Six,
without the execution or filing of any paper or any further act on the part of any of the parties
to this Indenture. In case any Securities of any series shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Securities of such series
so authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities; and in case at that time any of the Securities of any series shall not have been
authenticated, any successor 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.




ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




SECTION 701. Disclosure of Names and Addresses of Holders; Holders’ List.




          (a) Every Holder of Securities of a series, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, and that the Trustee shall not be held
accountable by reason of delivering any material pursuant to a request made under Section 312(b) of
the Trust Indenture Act.




          (b) The Security Registrar shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of Holders. If the Trustee is not
the Security Registrar, the Company shall furnish to the Trustee, in writing no later than one
business day following the record date for each Interest Payment Date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.




SECTION 702. Reports by Trustee.




          Within 60 days after May 15 of each year commencing with the first May 15 after the date of
this Indenture, the Trustee shall transmit to the Holders, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such May 15 if required by
Section 313(a) of the Trust Indenture Act.










 



44




SECTION 703. Reports by Company.




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




ARTICLE EIGHT




MERGER, CONSOLIDATION AND SALE OF ASSETS




SECTION 801. Company May Consolidate, etc., Only on Certain Terms.




          (a) The Company will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise
dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the Company’s assets (determined
on a consolidated basis for the Company and the Company’s Restricted Subsidiaries) whether as an
entirety or substantially as an entirety to any Person unless:




          (1) either:





     (a) the Company shall be the surviving or continuing corporation; or




     (b) the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of the
Company and the Company’s Restricted Subsidiaries substantially as an entirety (the
“Surviving Entity”):




     (x) shall be a corporation organized and validly existing under the
laws of the United States or any State thereof or the District of Columbia;
and




     (y) shall expressly assume, by supplemental indenture (in form and
substance satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of, and premium, if
any, and interest on all of the Securities and the performance of every
covenant of the Securities and this Indenture on the part of the Company to
be performed or observed;




     (2) immediately after giving effect to such transaction and the assumption
contemplated by clause (l)(b)(y) above no Default or Event of Default shall have
occurred or be continuing; and









 



45



     (3) the Company or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with the applicable provisions of
this Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.



          (b) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in
a single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all the properties and assets of the Company.




SECTION 802. Successor Substituted.




          Upon any consolidation, merger, sale, assignment, conveyance, transfer, lease or other
transaction described in, and complying with the provisions of, Section 801 in which the Company is
not the continuing corporation, the Surviving Entity shall succeed to, and be substituted for, and
may exercise every right and power of, the Company, as the case may be, under this Indenture and
the Securities with the same effect as if such Surviving Entity had been named as such, and the
Company shall be discharged from all obligations and covenants under this Indenture and the
Securities, provided that, in the case of a transfer by lease, the predecessor shall not be
released from its obligations with respect to the payment of principal (premium, if any) and
interest on the Securities or its obligations under Section 607.




ARTICLE NINE




SUPPLEMENTAL INDENTURES




SECTION 901. Supplemental Indentures Without Consent of Holders.




          Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
to this Indenture, in form satisfactory to the Trustee, for any of the following purposes:





     (1) to evidence the succession of another Person to the Company and complying with
Article Eight; or




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









 



46



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




     (4) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 610; or




     (5) to cure any ambiguity, defect or inconsistency, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or to make clear
any other provisions with respect to matters or questions arising under this Indenture; or




     (6) to secure the Securities pursuant to the requirements of Section 1006 or otherwise;
or




     (7) to comply with any requirements of the Commission in order to effect and maintain
the qualification of this Indenture under the Trust Indenture Act; or




     (8) to comply with the rules of any applicable Depositary; or




     (9) to establish the form of any Security, as permitted by Section 202, and to provide
for the issuance of any series of Securities, as permitted by Section 301, and to set forth
the terms thereof; or




     (10) to add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in uncertificated
form; or




     (11) to conform any provision of this Indenture, any supplemental indenture, one or
more series of Securities or any related guarantees or security documents, if any, to the
description of such Securities contained in the Company’s prospectus, prospectus supplement,
offering memorandum or similar document with respect to the offering of the Securities of
such series to the extent that such description was intended to be a verbatim recitation of
a provision in this Indenture, such Securities or any related security documents; or




     (12) to make any other amendments, modifications or supplements hereto or to the
Securities, provided, that such amendments, modifications or supplements shall only
apply to Securities of one or more series to be thereafter issued or shall not adversely
affect the rights of any Holder of any Outstanding Security.









 



47


SECTION 902. Supplemental Indentures and Waivers With Consent of Holders.




          With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected (with each series voting as a separate class), by
Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures supplemental to this
Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series under this Indenture. However, no such supplemental indenture or
waiver (including a waiver pursuant to Section 513) shall, without the consent of the Holder of
each Outstanding Security affected thereby,





     (1) reduce the amount of Securities of a series whose Holders must consent to an
amendment;




     (2) reduce the rate of or change or have the effect of changing the time for payment of
interest, including Defaulted Interest, on any such Security;




     (3) reduce the principal of or change or have the effect of changing the fixed maturity
of any Security, or change the date on which any Security may be subject to redemption or
reduce the Redemption Price therefor;




     (4) make any Security payable in money other than that stated in the Securities of such
series;




     (5) make any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of and interest on a Security on or after the due date
thereof or to bring suit to enforce such payment, or permitting Holders of a majority in
principal amount of Securities of such series to waive Defaults or Events of Default; or




     (6) modify or change any provision of this Indenture or the related definitions, in
each case, affecting the ranking of the Securities of a series in a manner which adversely
affects the Holders thereof.



          It shall not be necessary for any Act of Holders under this Section 902 to approve the
particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if
such Act shall approve the substance thereof.




SECTION 903. Execution of Supplemental Indentures.




          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.










 



48




SECTION 904. Effect of Supplemental Indentures.




          Upon the execution of any supplemental indenture with respect to Securities of one or more
series under this Article Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities of such series theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.




SECTION 905. Conformity with Trust Indenture Act.




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




SECTION 906. Reference in Securities to Supplemental Indentures.




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




SECTION 907. Notice of Supplemental Indentures.




          Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Sections 901 and 902, the Company shall give notice thereof to the
Holders of each Outstanding series of Securities affected, in the manner provided for in Section
207, setting forth in general terms the substance of such supplemental indenture; provided,
however, that the Company shall not be required to give notice of any indenture
supplemental to this Indenture entered into solely for the purpose specified in Section 901(8),
notice with respect to which shall be given by the Company when it is next required to give notice
pursuant to this Section 907. The failure to give any such notice or any defect therein shall not
affect the validity of such supplemental indenture.




SECTION 908. Record Date.




          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any supplemental indenture, agreement or instrument
or any waiver, and, if a record date is fixed, shall promptly notify the Trustee of any such record
date. If a record date is fixed, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to such supplemental
indenture, agreement or instrument or waiver or to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent shall be valid or
effective with respect to such supplemental indenture, agreement or instrument or waiver which is
entered into more than 120 days after such record date.










 



49




ARTICLE TEN

COVENANTS




SECTION 1001. Payment of Principal, Premium, if any, and Interest.




          With respect to each series of Securities, the Company shall pay the principal of (and
premium, if any, on) and interest on such series of Securities in accordance with the terms of such
series of Securities and this Indenture. Principal, premium, if any, interest shall be considered
paid on the date due if on such date the Trustee or the relevant Paying Agent hold in accordance
with this Indenture money sufficient to pay all principal, premium and interest then due and the
Trustee or such Paying Agent, as the case may be, are not prohibited from paying such money to the
Holders of such Securities on that date.




SECTION 1002. Maintenance of Office or Agency.




          The Company shall maintain an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be such office or agency
of the Company, unless the Company shall designate and maintain some other office or agency for one
or more of such purposes. The Company shall give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands. Unless otherwise specified with respect
to a series of Securities as contemplated by Section 301, the Company hereby designates as a place
of payment for the Securities the office or agency of the Trustee, and initially appoints the
Trustee as Paying Agent to receive all such presentations, surrenders, notices and demands. The
Company may also from time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes and may from time to time
rescind any such designation. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other office or agency
but shall not be required to give notice of such designation, rescission or change to the Holders.




SECTION 1003. Money for Security Payments to Be Held in Trust.




          (a) If the Company shall at any time act as its own Paying Agent, it shall, on or before each
due date of the principal of (and premium, if any, on) or interest on any series of Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and shall promptly notify the Trustee of
its action or failure so to act. Whenever the Company shall have one or more Paying Agents for the
Securities of a series, it shall, on or before each due date of the principal of (and premium, if
any, on), or interest on, any Securities of such series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming










 



50



due, such sum to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee of such action or any failure so to act. The Company shall cause each Paying
Agent (other than the Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that
such Paying Agent will:





     (1) hold all sums held by it for the payment of the principal of (and premium, if any,
on) or interest on Securities of a series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;




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




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



SECTION 1004. Corporate Existence.




          Subject to Article Eight, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its material rights (charter
and statutory), licenses and franchises; provided that the Company shall not be required to
preserve any such right, license or franchise if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole.




SECTION 1005. Statement by Officers as to Compliance.




          The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year,
an Officers’ Certificate stating that in the course of the performance by the signer of its duties
as an officer of the Company he would normally have knowledge of any Default or Event of Default
and whether or not the signer knows of any Default or Event of Default that occurred during such
period and if any specifying such Default or Event of Default, its status and what action the
Company is taking or proposed to take with respect thereto. The Company shall provide an Officers’
Certificate to the Trustee promptly upon any such officer obtaining knowledge of any Default or
Event of Default that has occurred and, if applicable, describe such Default or Event of Default
and the status thereof. For purposes of this Section 1005, such compliance shall be determined
without regard to any period of grace or requirement of notice under this Indenture. The Company
shall comply with Section 314(a)(4) of the Trust Indenture Act.




SECTION 1006. Limitation on Liens.




          (a) The Company will not create or suffer to exist, or permit any of its Specified
Subsidiaries to create or suffer to exist, any Lien, or any other type of preferential arrangement,









 



51


upon or with respect to any of its properties (other than “margin stock” as that term is
defined in Regulation U issued by the Board of Governors of the Federal Reserve System), whether
now owned or hereafter acquired, or assign, or permit any of its Specified Subsidiaries to assign,
any right to receive income, in each case to secure any Indebtedness (other than Indebtedness
described in clauses (5) and (8) of the definition of “Indebtedness” herein) without making
effective provision whereby all of the Securities of each series (together with, if the Company
shall so determine, any other Indebtedness of the Company or such Specified Subsidiary then
existing or thereafter created which is not subordinate to the Securities of each series) shall be
equally and ratably secured with the Indebtedness secured by such security (provided that
any Lien created for the benefit of the Holders of the Securities of each series pursuant to this
sentence shall provide by its terms that such Lien shall be automatically and unconditionally
released and discharged upon the release and discharge of the Lien that resulted in such provision
becoming applicable, unless a Default or Event of Default shall then be continuing);
provided, however, that the Company or its Specified Subsidiaries may create or
suffer to exist any Lien or preferential arrangement of any kind in, of or upon any of the
properties or assets of the Company or its Specified Subsidiaries to secure Indebtedness if upon
creation of such Lien or arrangement and after giving effect thereto, the aggregate principal
amount of Indebtedness secured by Liens would not exceed the greater of (i) $2.0 billion and (ii)
20% of the Consolidated Net Worth of the Company; and provided, further, that the
foregoing restrictions or limitations shall not apply to any of the following:





     (1) deposits, Liens or pledges arising in the ordinary course of business to enable
the Company or any of its Specified Subsidiaries to exercise any privilege or license or to
secure payments of workers’ compensation or unemployment insurance, or to secure the
performance of bids, tenders, leases, contracts (other than for the payment of borrowed
money) or statutory landlords’ Liens or to secure public or statutory obligations or surety,
stay or appeal bonds, or other similar deposits or pledges made in the ordinary course of
business;




     (2) Liens imposed by law or other similar Liens, if arising in the ordinary course of
business, such as mechanic’s, material man’s, workman’s, repairman’s or carrier’s liens, or
deposits or pledges in the ordinary course of business to obtain the release of such Liens;




     (3) Liens arising out of judgments or awards against the Company or any of its
Specified Subsidiaries in an aggregate amount not to exceed at any time outstanding under
this clause (3) the greater of (a) 15% of the Consolidated Net Worth of the Company or (b)
the minimum amount which, if subtracted from such Consolidated Net Worth, would reduce such
Consolidated Net Worth below $3.2 billion and, in each case, with respect to which the
Company or such Specified Subsidiary shall in good faith be prosecuting an appeal or
proceedings for review, or Liens for the purpose of obtaining a stay or discharge in the
course of any legal proceedings;




     (4) Liens for taxes if such taxes are not delinquent or thereafter can be paid without
penalty, or are being contested in good faith by appropriate proceedings, or minor survey
exceptions or minor encumbrances, easements or restrictions which do not in the aggregate
materially detract from the value of the property so encumbered or









 



52



restricted or materially impair their use in the operation of the business of the
Company or any Specified Subsidiary owning such property;




     (5) Liens in favor of any government or department or agency thereof or in favor of a
prime contractor under a government contract and resulting from the acceptance of progress
or partial payments under government contracts or subcontracts thereunder;




     (6) Liens existing on December 1, 1991;




     (7) purchase money Liens or security interests in property acquired or held by the
Company or any Specified Subsidiary in the ordinary course of business to secure the
purchase price thereof or Indebtedness incurred to finance the acquisition thereof;




     (8) Liens existing on property at the time of its acquisition;




     (9) the rights of Xerox Credit Corporation relating to a certain reserve account
established pursuant to an operating agreement dated as of November 1, 1980, between the
Company and Xerox Credit Corporation;




     (10) the replacement, extension or renewal of any of the foregoing;




     (11) Liens on any assets of any Specified Subsidiary of up to $500.0 million incurred
since December 1, 1991 in connection with the sale or assignment of assets of such Specified
Subsidiary for cash where the proceeds are applied to repayment of Indebtedness of such
Specified Subsidiary and/or invested by such Specified Subsidiary in assets which would be
reflected as receivables on the balance sheet of such Specified Subsidiary.



          (b) In addition, if after January 17, 2002 any Capital Markets Debt of the Company or any
Restricted Subsidiary becomes secured by a Lien pursuant to any provision similar to the covenant
in the immediately preceding paragraph, then, for so long as such Capital Markets Debt of the
Company is secured by such Lien (provided that any Lien created for the benefit of the
Holders of the Securities of each series pursuant to this sentence shall be automatically and
unconditionally released and discharged upon the release and discharge of the Lien that resulted in
the imposition of the Lien hereunder):





     (A) in the case of a Lien securing Subordinated Indebtedness, the Securities of each
series shall be secured by a Lien on the same property as such Lien that is senior in
priority to such Lien; and




     (B) in all other cases, the Securities of each series shall be equally and ratably
secured by a Lien on the same property as such Lien.









 



53


ARTICLE ELEVEN




REDEMPTION AND REPAYMENT OF SECURITIES




SECTION 1101. Applicability of Article. 




          The Company may reserve the right to redeem and pay before Stated Maturity all or any part of
the Securities of any series, either by optional redemption, sinking fund or otherwise, by
provision therefor in the form of Security for such series approved or established pursuant to
Section 202 and on such terms as are specified in such form or the Officers’ Certificate delivered
pursuant to Section 301 or the indenture supplemental hereto as provided in Section 301 with
respect to Securities of such series. Redemption of Securities of any series shall be made in
accordance with the terms of such Securities and, to the extent that this Article does not conflict
with such terms, in accordance with this Article.




SECTION 1102. Election to Redeem; Notice to Trustee. 




          The election of the Company to redeem any Securities redeemable at the option of the Company
shall be evidenced by a Board Resolution and/or by an Officers’ Certificate made pursuant to a
Board Resolution. In the case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed not less than 45 nor more than 60
days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).




SECTION 1103. Selection by Trustee of Securities to be Redeemed. 




          To the extent that the Securities of a given series have different terms, the Company in its
sole and absolute discretion shall select the Securities to be redeemed if less than all of the
series are to be redeemed. If less than all the Securities of a given series having the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected not less than 35 nor
more than 45 days prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series having such terms not previously called for redemption, pro rata or by lot or by such
other similar method as the Trustee shall deem fair and appropriate (consistent with any applicable
procedures of DTC and so long as such method is not prohibited by the rules of any stock exchange
on which the Securities may be then listed) and which may provide for the selection for redemption
of portions of the principal of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of such series. Unless otherwise provided by the terms of
the Securities of any series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be equal to $2,000 or an
integral multiple of $1,000 in excess thereof and the principal amount which remains outstanding
shall not be less than the minimum authorized denomination for Securities of such series.




          If less than all of the Securities of a given series having different terms are to be
redeemed, the Company shall notify the Trustee of the Securities to be redeemed not less than 45
nor more than 60 days prior to the Redemption Date (unless a shorter notice shall be satisfactory









 



54


to the Trustee). If less than all the Securities of a series having the same terms are to be
redeemed, the Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the principal amount
thereof to be redeemed.




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




SECTION 1104. Notice of Redemption. 




          Notice of redemption shall be given in the manner provided in Section 107, not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed.




          All notices of redemption shall state:





     (1) the Redemption Date,




     (2) the Redemption Price,




     (3) the CUSIP, ISIN or other similar number; provided, that such notice shall
state to the effect that no representation is made as to the correctness of any such CUSIP,
ISIN or other similar number, either as printed on the Security or as contained in any such
notice, and that reliance may be placed only on the other identification numbers printed on
the Securities and any redemption shall not be affected by any defect in or omission of such
numbers,




     (4) the name and address of the Paying Agent,




     (5) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Securities to be redeemed,




     (6) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security or portion thereof, and that interest, if any, thereon shall cease to
accrue on and after said date,




     (7) the place where such Securities and all coupons, if any, are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of the Company in the
Place of Payment, and




     (8) that the redemption is on account of a sinking fund, if that be the case.









 



55


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




SECTION 1105. Deposit of Redemption Price. 




          On or prior to any Redemption Date, but, in any event, not later than (i) 12:00 noon New York
City time on the applicable Redemption Date for Securities payable only in the United States, or
(ii) the close of business on the Business Day prior to the applicable Redemption Date for
Securities with a Place of Payment outside the United States, the Company shall deposit with the
Trustee or with a Paying Agent in immediately available funds (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, which shall include any premium and interest payable on,
all the Securities which are to be redeemed on that date.




SECTION 1106. Securities Payable on Redemption Date. 




          Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified and on
such date (unless the Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of such Securities for redemption in accordance with
said notice, such Securities shall be paid by the Company at the Redemption Price. In the case of
Fully Registered Securities, unless otherwise provided in such Securities, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such
Fully Registered Securities registered as such on the relevant Regular Record Dates according to
their terms and the provisions of Section 307.




          If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate
borne by such Security, or as otherwise provided in such Security.




SECTION 1107. Securities Redeemed in Part. 




          Any Security which is to be redeemed only in part shall be surrendered at the office or agency
of the Company in the Place of Payment (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder of any Registered Security or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Security or Securities of the same series, tenor and
Stated Maturity of any authorized denominations as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Security so
surrendered.




SECTION 1108. Provisions with Respect to any Sinking Funds. 




          If the form or terms of any series of Securities shall provide that, in lieu of making all or
any part of any mandatory sinking fund payment with respect to such series of Securities in cash,
the Company may at its option (1) deliver to the Trustee for cancellation any









 



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Securities of such series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company and thereto fore
delivered to the Trustee for cancellation or redeemed other than through the mandatory sinking
fund, then (i) Securities so delivered, redeemed or credited shall be credited at the applicable
sinking fund Redemption Price with respect to Securities of such series, and (ii) on or before the
60th day next preceding each sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers’ Certificate specifying the
portions of such sinking fund payment to be satisfied by payment of cash and by the delivery or
credit of Securities of such series acquired or so redeemed by the Company, and (B) any Securities
to be so delivered, to the extent not previously surrendered. Such Officers’ Certificate shall
also state that the Securities for which the Company elects to receive credit have not been
previously so credited and were not acquired by the Company through operation of the mandatory
sinking fund, if any, provided with respect to such Securities or are required to be delivered to
the Trustee pursuant to Section 309 and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing. All Securities so delivered to the
Trustee shall be canceled by the Trustee and no Securities shall be authenticated in lieu thereof.




          If the sinking fund payment or payments (mandatory or optional) with respect to any series of
Securities made in cash plus any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company
shall so request), unless otherwise provided by the terms of such series of Securities, said cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of
such series next following the date of such payment to the redemption of Securities of such series
at the applicable sinking fund Redemption Price with respect to Securities of such series, together
with accrued interest, if any, to the date fixed for redemption, with the effect provided in
Section 1106. The Trustee shall select, in the manner provided in Section 1103, for redemption on
such sinking fund Redemption Date a sufficient principal amount of Securities of such series to
utilize said cash and shall thereupon cause notice of redemption of the Securities of such series
for the sinking fund to be given in the manner provided in Section 1104 (and with the effect
provided in Section 1106) for the redemption of Securities in part at the option of the Company.
Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities
of such series shall be added to the next cash sinking fund payment with respect to Securities of
such series received by the Trustee and, together with such payment, shall be applied in accordance
with the provisions of this Section 1108. Any and all sinking fund moneys with respect to
Securities of any series held by the Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Securities of such series at Maturity.




          On or before each sinking fund Redemption Date provided with respect to Securities of any
series, the Company shall pay to the Trustee in cash a sum equal to all accrued interest, if any,
to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 1108.










 



57




SECTION 1109. Applicability of Early Repayment Provisions. 




          Repayment of Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in accordance with this
Section and Sections 1110, 1111, 1112 and 1113.




SECTION 1110. Repayment of Securities. 




          Securities of any series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest thereon accrued to the Repayment Date
specified in the terms of such Securities. On or before the Repayment Date, the Company will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to
pay the Repayment Price of all the Securities which are to be repaid on such date.




SECTION 1111. Exercise of Option. 




          Unless otherwise provided in the terms of such Securities, to be repaid at the option of the
Holder, (a) in the case of any definitive Security so providing for such repayment, such Security,
together with the “Option to Elect Repayment” form on the reverse thereof duly completed by the
Holder, or (b) in the case of any Global Security so providing for such repayment, such notice or
notices as may be set forth therein, must be received by the Trustee or any other Person designated
by the Company at the Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 30 days nor later than 15 days (unless a shorter notice shall be
satisfactory to the Trustee) prior to the Repayment Date. If less than the entire principal amount
of such Security is to be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of $2,000 and integral multiples of $1,000 in excess thereof unless
otherwise specified in the terms of such Security, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the principal amount of such
Security surrendered that is not to be repaid must be specified. The principal amount of any
Security providing for repayment at the option of the Holder thereof may not be repaid in part,
if, following such repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security providing for repayment
at the option of the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.




SECTION 1112. When Securities Presented for Repayment Become Due and Payable.




          If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in Section 1111 and as provided by the terms of such Securities,
such Securities or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein









 



58


specified, and on and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) interest on such Securities or the portions
thereof, as the case may be, shall cease to accrue.




SECTION 1113. Securities Repaid in Part. 




          Upon surrender of any Security which is to be repaid in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Security or Securities of the same series and
Stated Maturity, of any authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.




ARTICLE TWELVE




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




SECTION 1201. Company’s Option to Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at its option and at any time, elect to have either Section 1202 or Section
1203 be applied to all Outstanding Securities of any series upon compliance with the conditions set
forth below in this Article Twelve




SECTION 1202. Legal Defeasance and Discharge.




          The Company may, at its option and at any time, elect to have its obligations discharged with
respect to the Outstanding Securities of any series (“Legal Defeasance”). Such Legal
Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series, except for:





     (1) the rights of Holders of such Securities to receive payments in respect of the
principal of, premium, if any, and interest on such Securities when such payments are due
from the trust fund referred to below;




     (2) the Company’s obligations with respect to Sections 305, 306, 307 and 1002;




     (3) the rights, powers, trust, duties and immunities of the Trustee under Article Six
and the Company’s obligations in connection therewith; and




     (4) the provisions of this Article Twelve.



SECTION 1203. Covenant Defeasance.




          The Company may, at its option and at any time, elect to have the obligations of the Company
released with respect to the Securities of any series with respect to Sections 1006 and Section
801(a)(2) (“Covenant Defeasance”) and thereafter any omission to comply with such
obligations shall not constitute a Default or Event of Default with respect to such Securities.
The









 



59


Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its
Covenant Defeasance option.




SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance.




          The following shall be the conditions to application of either Section 1202 or Section 1203:




          In order to exercise either Legal Defeasance or Covenant Defeasance:





     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders of the Securities of each affected series, cash in U.S. dollars, non-callable
U.S. Government Obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on such Securities on
the stated date for payment thereof or on the applicable redemption date, as the case may
be;




     (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States who shall be reasonably acceptable to the Trustee
confirming that:




     (a) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling; or




     (b) since the date of this Indenture, there has been a change in the
applicable federal income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;




     (3) in the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States who shall be reasonably acceptable to the
Trustee confirming that the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;




     (4) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of deposit;




     (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under this Indenture or any other material agreement









 



60



or instrument to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;




     (6) the Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders over
any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;




     (7) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with; and




     (8) no event or condition shall exist that would prevent the Company from making
payments of the principal of, premium, if any, and interest on such Securities on the date
of such deposit on the date of such deposit.



          Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with
respect to a Legal Defeasance need not be delivered if all Securities of each affected series not
theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will
become due and payable on the maturity date within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of
the Company.




SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.




          Subject to the provisions of Section 1003, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively, for purposes of this Section 1205, the “Trustee”) pursuant to Section 1204 in
respect of the Outstanding Securities of each affected series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest, but such money
need not be segregated from other funds except to the extent required by law.




          The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Governmental Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding Securities of each affected
series.




          Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be









 



61


required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance, as
applicable, in accordance with this Article Twelve.




SECTION 1206. Reinstatement.




          If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
1205 by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s obligations under this
Indenture and the Securities of each affected series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1202 or 1203, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1205, and
the Company shall execute all documents reasonably satisfactory to the Trustee evidencing such
revival and reinstatement; provided, however, that if the Company makes any payment
of principal of (or premium, if any, on) or interest on any Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.




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




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	XEROX CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 






	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, 

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: