exv4w4






Exhibit 4.4




AVANIR PHARMACEUTICALS, INC.




Issuer




And




 






Trustee




Indenture




Dated as of                      ___, 201___




Subordinated Debt Securities




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE One — DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	SECTION 101. Definitions
	 	 	1	 
	SECTION 102. Compliance Certificates and Opinions
	 	 	11	 
	SECTION 103. Form of Documents Delivered to Trustee
	 	 	12	 
	SECTION 104. Acts of Holders
	 	 	12	 
	SECTION 105. Notices, etc., to Trustee and Company
	 	 	14	 
	SECTION 106. Notice to Holders; Waiver
	 	 	15	 
	SECTION 107. Counterparts; Effect of Headings and Table of Contents
	 	 	16	 
	SECTION 108. Successors and Assigns
	 	 	16	 
	SECTION 109. Severability Clause
	 	 	16	 
	SECTION 110. Benefits of Indenture
	 	 	16	 
	SECTION 111. Governing Law
	 	 	16	 
	SECTION 112. Legal Holidays
	 	 	16	 
	SECTION 113. Limited Liability; Immunity of Stockholders, Directors, Officers and
Agents of the Company
	 	 	16	 
	SECTION 114. Conflict with Trust Indenture Act
	 	 	17	 
	 
	 	 	 	 
	ARTICLE Two — SECURITIES FORMS
	 	 	17	 
	SECTION 201. Forms of Securities
	 	 	17	 
	SECTION 202. Form of Trustee’s Certificate of Authentication
	 	 	18	 
	SECTION 203. Securities Issuable in Global Form
	 	 	18	 
	 
	 	 	 	 
	ARTICLE Three — THE SECURITIES
	 	 	19	 
	SECTION 301. Amount Unlimited; Issuable in Series
	 	 	19	 
	SECTION 302. Denominations
	 	 	22	 
	SECTION 303. Execution, Authentication, Delivery and Dating
	 	 	22	 
	SECTION 304. Temporary Securities
	 	 	25	 
	SECTION 305. Registration, Registration of Transfer, Conversion and Exchange
	 	 	27	 
	SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	31	 
	SECTION 307. Payment of Interest; Interest Rights Preserved
	 	 	32	 
	SECTION 308. Persons Deemed Owners
	 	 	34	 
	SECTION 309. Cancellation
	 	 	34	 
	SECTION 310. Computation of Interest
	 	 	35	 
	SECTION 311. CUSIP Numbers
	 	 	35	 
	 
	 	 	 	 
	ARTICLE Four — SATISFACTION AND DISCHARGE
	 	 	35	 
	SECTION 401. Satisfaction and Discharge of Indenture
	 	 	35	 
	SECTION 402. Application of Trust Funds
	 	 	36	 






(i)









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE Five — REMEDIES
	 	 	37	 
	SECTION 501. Events of Default
	 	 	37	 
	SECTION 502. Acceleration of Maturity; Rescission and Annulment
	 	 	38	 
	SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	39	 
	SECTION 504. Trustee May File Proofs of Claim
	 	 	39	 
	SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons
	 	 	40	 
	SECTION 506. Application of Money Collected
	 	 	41	 
	SECTION 507. Limitation on Suits
	 	 	41	 
	SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or
Make-Whole Amount, if any, and Interest
	 	 	41	 
	SECTION 509. Restoration of Rights and Remedies
	 	 	42	 
	SECTION 510. Rights and Remedies Cumulative
	 	 	42	 
	SECTION 511. Delay or Omission Not Waiver
	 	 	42	 
	SECTION 512. Control by Holders of Securities
	 	 	42	 
	SECTION 513. Waiver of Past Defaults
	 	 	43	 
	SECTION 514. Waiver of Usury, Stay or Extension Laws
	 	 	43	 
	SECTION 515. Undertaking for Costs
	 	 	43	 
	 
	 	 	 	 
	ARTICLE Six — THE TRUSTEE
	 	 	44	 
	SECTION 601. Notice of Defaults
	 	 	44	 
	SECTION 602. Certain Rights of Trustee
	 	 	44	 
	SECTION 603. Not Responsible for Recitals or Issuance of Securities
	 	 	46	 
	SECTION 604. May Hold Securities
	 	 	46	 
	SECTION 605. Money Held in Trust
	 	 	46	 
	SECTION 606. Compensation and Reimbursement
	 	 	46	 
	SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests
	 	 	47	 
	SECTION 608. Resignation and Removal; Appointment of Successor
	 	 	47	 
	SECTION 609. Acceptance of Appointment by Successor
	 	 	49	 
	SECTION 610. Merger, Conversion, Consolidation or Succession to Business
	 	 	50	 
	SECTION 611. Appointment of Authenticating Agent
	 	 	50	 
	SECTION 612. Certain Duties and Responsibilities of the Trustee
	 	 	51	 
	 
	 	 	 	 
	ARTICLE Seven — HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	53	 
	SECTION 701. Disclosure of Names and Addresses of Holders
	 	 	53	 
	SECTION 702. Reports by Trustee
	 	 	53	 
	SECTION 703. Reports by Company
	 	 	53	 
	SECTION 704. Company to Furnish Trustee Names and Addresses of Holders
	 	 	54	 






(ii)









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE Eight — CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
	 	 	54	 
	SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions
	 	 	54	 
	SECTION 802. Rights and Duties of Successor Corporation
	 	 	55	 
	SECTION 803. Officers’ Certificate and Opinion of Counsel
	 	 	55	 
	 
	 	 	 	 
	ARTICLE Nine — SUPPLEMENTAL INDENTURES
	 	 	55	 
	SECTION 901. Supplemental Indentures Without Consent of Holders
	 	 	55	 
	SECTION 902. Supplemental Indentures with Consent of Holders
	 	 	57	 
	SECTION 903. Execution of Supplemental Indentures
	 	 	58	 
	SECTION 904. Effect of Supplemental Indentures
	 	 	58	 
	SECTION 905. Conformity with Trust Indenture Act
	 	 	58	 
	SECTION 906. Reference in Securities to Supplemental Indentures
	 	 	58	 
	 
	 	 	 	 
	ARTICLE Ten — COVENANTS
	 	 	58	 
	SECTION 1001.  Payment of Principal, Premium or Make-Whole Amount, if any; and
Interest
	 	 	58	 
	SECTION 1002.  Maintenance of Office or Agency
	 	 	59	 
	SECTION 1003.  Money for Securities Payments to Be Held in Trust
	 	 	60	 
	SECTION 1004.  Existence
	 	 	61	 
	SECTION 1005.  Maintenance of Properties
	 	 	62	 
	SECTION 1006.  Reserved
	 	 	62	 
	SECTION 1007.  Reserved
	 	 	62	 
	SECTION 1008.  Statement as to Compliance
	 	 	62	 
	SECTION 1009.  Waiver of Certain Covenants
	 	 	62	 
	 
	 	 	 	 
	ARTICLE Eleven — REDEMPTION OF SECURITIES
	 	 	62	 
	SECTION 1101.  Applicability of Article
	 	 	62	 
	SECTION 1102.  Election to Redeem; Notice to Trustee
	 	 	63	 
	SECTION 1103.  Selection by Trustee of Securities to Be Redeemed
	 	 	63	 
	SECTION 1104.  Notice of Redemption
	 	 	63	 
	SECTION 1105.  Deposit of Redemption Price
	 	 	64	 
	SECTION 1106.  Securities Payable on Redemption Date
	 	 	65	 
	SECTION 1107.  Securities Redeemed in Part
	 	 	66	 
	 
	 	 	 	 
	ARTICLE Twelve — SINKING FUNDS
	 	 	66	 
	SECTION 1201.  Applicability of Article
	 	 	66	 
	SECTION 1202.  Satisfaction of Sinking Fund Payments with Securities
	 	 	66	 
	SECTION 1203.  Redemption of Securities for Sinking Fund
	 	 	67	 
	 
	 	 	 	 
	ARTICLE Thirteen — REPAYMENT AT THE OPTION OF HOLDERS
	 	 	67	 
	SECTION 1301.  Applicability of Article
	 	 	67	 
	SECTION 1302.  Repayment of Securities
	 	 	67	 
	SECTION 1303.  Exercise of Option
	 	 	67	 






(iii)









 





	 	 	 	 	 
	 	 	Page	 
	SECTION 1304. When Securities Presented for Repayment Become Due and Payable
	 	 	68	 
	SECTION
1305. Securities Repaid in Part
	 	 	69	 
	 
	 	 	 	 
	ARTICLE Fourteen — DEFEASANCE AND COVENANT DEFEASANCE
	 	 	69	 
	SECTION 1401. Applicability of Article; Company’s Option to Effect Defeasance or
Covenant Defeasance
	 	 	69	 
	SECTION 1402. Defeasance and Discharge
	 	 	69	 
	SECTION 1403. Covenant Defeasance
	 	 	70	 
	SECTION 1404. Conditions to Defeasance or Covenant Defeasance
	 	 	70	 
	SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions
	 	 	72	 
	SECTION 1406. Reinstatement.
	 	 	73	 
	 
	 	 	 	 
	ARTICLE Fifteen — MEETINGS OF HOLDERS OF SECURITIES
	 	 	73	 
	SECTION 1501. Purposes for Which Meetings May Be Called
	 	 	73	 
	SECTION 1502. Call, Notice and Place of Meetings
	 	 	73	 
	SECTION 1503. Persons Entitled to Vote at Meetings
	 	 	74	 
	SECTION 1504. Quorum; Action
	 	 	74	 
	SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings
	 	 	75	 
	SECTION 1506. Counting Votes and Recording Action of Meetings
	 	 	76	 
	 
	 	 	 	 
	ARTICLE Sixteen — SUBORDINATION OF SECURITIES
	 	 	76	 
	SECTION 1601. Agreement to Subordinate
	 	 	76	 
	SECTION 1602. Payment Over of Proceeds upon Dissolution, Etc
	 	 	76	 
	SECTION 1603. No Payment When Senior Indebtedness in Default
	 	 	78	 
	SECTION 1604. Reliance by Senior Indebtedness on Subordination Provisions
	 	 	79	 
	SECTION 1605. Subrogation to Rights of Holders of Senior Indebtedness
	 	 	79	 
	SECTION 1606. Provisions Solely to Define Relative Rights
	 	 	79	 
	SECTION 1607. Trustee to Effectuate Subordination
	 	 	80	 
	SECTION 1608. No Waiver of Subordination Provisions
	 	 	80	 
	SECTION 1609. Notice to Trustee
	 	 	81	 
	SECTION 1610. Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	81	 
	SECTION 1611. Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	82	 
	SECTION 1612. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee’s Rights
	 	 	82	 
	SECTION
1613. Article Applicable to Paying Agents
	 	 	82	 
	 
	 	 	 	 
	ARTICLE Seventeen — CONVERSION OF SECURITIES
	 	 	82	 
	SECTION 1701. Applicability of Article; Conversion Privilege
and Conversion Price
	 	 	82	 
	SECTION 1702. Exercise of Conversion Privilege
	 	 	83	 
	SECTION 1703. Fractions of Shares
	 	 	84	 






(iv)









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 1704. Adjustment of Conversion Price
	 	 	84	 
	SECTION 1705. Notice of Adjustments of Conversion Price
	 	 	88	 
	SECTION 1706. Notice of Certain Corporate Action
	 	 	88	 
	SECTION 1707. Company to Reserve Common Stock
	 	 	89	 
	SECTION 1708. Taxes on Conversion
	 	 	89	 
	SECTION 1709. Covenants as to Common Stock
	 	 	89	 
	SECTION 1710. Cancellation of Converted Securities
	 	 	89	 
	SECTION 1711. Provisions in Case of Consolidation, Merger or Sale of Assets; Special
Distributions
	 	 	89	 
	SECTION 1712. Trustee Adjustment Disclaimer; Company Determination Final
	 	 	91	 
	SECTION 1713. When No Adjustment Required
	 	 	91	 
	SECTION 1714. Equivalent Adjustments
	 	 	91	 






(v)









 





AVANIR PHARMACEUTICALS, INC.




     Reconciliation and tie between the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act” or “TIA”) and the Indenture, dated as
of                      ___, 201___.



	 	 	 	 	 
	Trust Indenture	 	 
	   Act Section	 	Indenture Section
	§ 310(a)(1)
	 	 	607	 
	(a)(2)
	 	 	607	 
	(b)
	 	 	607, 608	 
	§ 312(c)
	 	 	701	 
	§ 313(a)
	 	 	702	 
	(c)
	 	 	702	 
	§ 314(a)
	 	 	703	 
	(a)(4)
	 	 	1008	 
	(c)(1)
	 	 	102	 
	(c)(2)
	 	 	102	 
	(e)
	 	 	102	 
	§ 315(b)
	 	 	601	 
	§ 316(a) (last sentence)
	 	101	(“Outstanding”)
	(a)(1)(A)
	 	 	502, 512	 
	(a)(1)(B)
	 	 	513	 
	(b)
	 	 	508	 
	§ 317(a)(1)
	 	 	503	 
	(a)(2)
	 	 	504	 
	§ 318(a)
	 	 	111	 
	(c)
	 	 	111	 








 




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





     Attention should also be directed to Section 318(c) of the Trust Indenture Act, which provides
that the provisions of Sections 310 to and including 317 of the Trust Indenture Act are a part of
and govern every qualified indenture, whether or not physically contained therein.



(vi)









 





     INDENTURE,
dated as of                      ___, 201___, between AVANIR PHARMACEUTICALS, INC., a
corporation organized under the laws of the State of Delaware (hereinafter called the “Company”),
having its principal office at                     , and                     , as Trustee
hereunder (hereinafter called the “Trustee”), having a Corporate Trust Office at
[                    ].



RECITALS OF THE COMPANY




     The Company deems it necessary to issue from time to time for its lawful purposes subordinated
debt securities (hereinafter called the “Securities”) evidencing its unsecured and subordinated
indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of the Securities, to be issued in one or more Series as provided in
this Indenture.



     This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act” or “TIA”), that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.



     All things necessary to make this Indenture a valid and legally binding 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 of a 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:




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




     (2) all other terms used herein which are defined in the TIA, either directly or by
reference therein, have the meanings assigned to them therein, and the terms “cash
transactions” and “self-liquidating paper,” as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the TIA;




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




     (4) any reference to an “Article” or a “Section” refers to an Article or Section, as
the case may be, of this Indenture; and




     (5) 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.



 









 





     “Act,” when used with respect to any Holder, has the meaning specified in Section 104.



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



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



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



     “Bankruptcy Law” has the meaning specified in Section 501.



     “Bearer Security” means any Security established pursuant to Section 201 which is
payable to the bearer.



     “Board of Directors” when used with reference to the Company, means the board of
directors of the Company, or any committee of that board duly authorized to act hereunder, or any
director or directors and/or officer or officers of the Company, to whom the board or committee
shall have duly delegated its authority.



     “Board Resolution” means a copy of (1) a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors or a duly
authorized committee of the Board of Directors and to be in full force and effect on the date of
such certification, or (2) a certificate signed by the director or directors and/or officer or
officers to whom the Board of Directors shall have duly delegated its authority, together with a
resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such
certification authorizing such delegation, and, in each case, delivered to the Trustee.



     “Business Day,” when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means, unless otherwise specified with
respect to any Securities issued pursuant to Section 301, any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation or executive
order to close.



     “Capital Stock” means, with respect to any Person, any capital stock (including
preferred stock), shares, interests, participations or other ownership interests (however
designated) of such



2









 







Person and any rights (other than debt securities convertible into or
exchangeable for corporate stock), warrants or options to purchase any thereof.



     “Clearstream” means Clearstream Banking Luxembourg, société anonyme, or its successor.



     “Closing Price” means the closing price of a share of Common Stock of the Company as
reported on the NASDAQ Global Market.



     “Code” means the Internal Revenue Code of 1986, as amended, and the regulations
thereunder.



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



     “Common Depository” has the meaning specified in Section 304.



     “Common Stock” means, with respect to any Person, all shares of capital stock issued
by such Person other than Preferred Stock.



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



     “Company Request” and “Company Order” mean, respectively, a written request or
order signed in the name of the Company by its Chairman of the Board, the Chief Executive Officer,
the President, or a Vice President, and by its Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.



     “Constituent Person” has the meaning specified in Section 1711.



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



     “Conversion Price” has the meaning specified in Section 1701.



     “Corporate Trust Office” means the office of the Trustee at which, at any particular
time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [                    ].



     “corporation” includes corporations, associations, partnerships, companies, business
trusts and entities.



3









 





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



     “Covenant Defeasance” has the meaning specified in Section 1403.



     “Custodian” has the meaning specified in Section 501.



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



     “Defeasance” has the meaning specified in Section 1402.



     “Distribution Record Date” has the meaning specified in Section 1711.



     “Dividend Record Date” has the meaning specified in Section 1704.



     “Dollar” or the sign “$” means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time of payment is legal tender for the
payment of public and private debts.



     “DTC” means The Depository Trust Company and any successor to DTC in its capacity as
depository for any Securities.



     “ECU” means the European Currency Unit as defined and revised from time to time by the
Council of the European Communities.



     “Euroclear” means Morgan Guaranty Trust Company of New York, Brussels office, or its
successor, as operator of the Euroclear System.



     “European Communities” means the European Economic Community, the European Coal and
Steel Community and the European Atomic Energy Community.



     “European Monetary System” means the European Monetary System established by the
Resolution of December 5, 1978 of the Council of the European Communities.



     “Event of Default” has the meaning specified in Article Five.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, as in force at
the date as of which this Indenture was executed; provided, however, that in the
event the Exchange Act is amended after such date, “Exchange Act” means to the extent required by
any such amendment, the Exchange Act as so amended.



     “Exchange Date” has the meaning specified in Section 304.



     “FINRA” means the Financial Industry Regulatory Authority, Inc.



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



4









 





     “GAAP” means, except as otherwise provided herein, generally accepted accounting
principles, as in effect from time to time, as used in the United States applied on a consistent
basis.



     “Global Security” means a Security evidencing all or a part of a series of Securities
issued to and registered in the name of the depository for such series, or its nominee, in
accordance with Section 305, and bearing the legend prescribed in Section 203.



     “Government Obligations” means (i) securities which are (A) direct obligations of the
United States of America or the government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment of which its full faith and credit
is pledged or (B) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America or
such other government, which, in either case, are not callable or redeemable at the option of the
issuer thereof, and (iii) a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such depository receipt.



     “Guaranty” by any Person means any Obligation, contingent or otherwise, of such Person
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including, without limitation, every Obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for the payment of such
Indebtedness, (ii) to purchase property, securities or services for the purpose of assuring the
holder of such Indebtedness of the payment of such Indebtedness or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Indebtedness; provided, however,
that a Guaranty by any Person shall not include endorsements by such Person for collection or
deposit, in either case in the ordinary course of business. The terms “Guaranteed,”
“Guaranteeing” and “Guarantor” shall have meanings correlative to the foregoing.



     “Holder” means, in the case of a Registered Security, the Person in whose name a
Security is registered in the Security Register and, in the case of a Bearer Security, the bearer
thereof and, when used with respect to any coupon, shall mean the bearer thereof.



     “Indebtedness” means, with respect to any Person, without duplication, (i) any
Obligation of such Person relating to any indebtedness of such Person (A) for borrowed money
(whether or not the recourse of the lender is to the whole of the assets, of such person or only to
a portion thereof), (B) evidenced by notes, debentures or similar instruments (including purchase
money obligations) given in connection with the acquisition of any property or assets (other than
trade



5









 







accounts payable for inventory or similar property acquired in the ordinary course of
business), including securities, for the payment of which such Person is liable, directly or
indirectly, or the payment of which is secured by a lien, charge or encumbrance on property or
assets of such Person, (C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of business), (D) with
respect to letters of credit or bankers acceptances issued for the account of such Person or
performance, surety or similar bonds, (E) for the payment of money relating to a capitalized lease
Obligation or (F) under interest rate swaps, caps or similar agreements and foreign exchange
contracts, currency swaps or similar agreements; (ii) any liability of others of the kind described
in the preceding clause (i), which such Person has Guaranteed or which is otherwise its legal
liability; and (iii) any and all deferrals, renewals, extensions and refunding of, or amendments,
modifications or supplements to, any liability of the kind described in any of the preceding
clauses (i) or (ii).



     “Indenture” means this instrument as originally executed or as it may be supplemented
or amended from time to time by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at any time
more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with
respect to any one or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may be supplemented or amended from time to time by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such Person is Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of
one or more indentures supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.



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



     “Interest,” when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity, shall mean interest payable after Maturity.



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



     “Make-Whole Amount,” when used with respect to any Security, means the amount, if any,
in addition to principal (and accrued interest thereon, if any) which is required by a Security,
under the terms and conditions specified therein or as otherwise specified as contemplated by
Section 301, to be paid by the Company to the Holder thereof in connection with any optional
redemption or accelerated payment of such Security.



     “mandatory sinking fund payment” has the meaning specified in Section 1201.



     “Market Value of the Distribution” has the meaning specified in Section 1704.



6









 





     “Maturity,” when used with respect to any Security, means the date on which the
principal (or, if the context so requires, in the case of an Original Issue Discount Security, or
lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the
specified terms of that Security) of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption, notice of option to elect repayment or otherwise.



     “Obligation” of any Person with respect to any specified Indebtedness means any
obligation of such Person to pay principal, premium, interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to such Person,
whether or not a claim for such post-petition interest is allowed in such proceeding), penalties,
reimbursement or indemnification amounts, fees, expenses or other amounts relating to such
Indebtedness.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of
Directors, the Chief Executive Officer, the President, or a Vice President (whether or not
designated by a number or word or words added before or after the title “Vice President”), and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the
Company or who may be an employee of or other counsel for the Company.



     “optional sinking fund payment” has the meaning specified in Section 1201.



     “Original Issue Discount Security” means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest thereon) 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, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture,
except:




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




          (ii) Securities, or portions thereof, for whose payment or redemption
(including repayment at the option of the Holder) 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 and
any coupons appertaining thereto; provided, however, that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;




          (iii) Securities, except to the extent provided in Sections 1402 and 1403, with
respect to which the Company has effected Defeasance and/or Covenant Defeasance as
provided in Article Fourteen; and



7









 






          (iv) Securities which have been paid pursuant to Section 306 or in exchange for
or in lieu of which other Securities have been authenticated and delivered pursuant
to this Indenture, other than any 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 such Securities are valid obligations
of the Company.


provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant to
Section 301 as of the date such Security is originally issued by the Company, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (i) above) of such
Security, (iii) the principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 301, and (iv) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company or of 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 a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities owned as
provided in clause (iv) above 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 such Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any decision made by the
Trustee in accordance with such advice.




     “Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium or Make-Whole Amount, if any) or interest on any Securities or coupons on behalf of the
Company.



     “Payment Blockage Notice” and “Payment Blockage Period” have the respective
meanings specified in Section 1603.



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



8









 





     “Place of Payment,” when used with respect to the Securities of or within any series,
means the place or places where the principal of (and premium or Make-Whole Amount, if any) and
interest on such Securities are payable as specified as contemplated by Sections 301 and 1002.



     “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 or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains.



     “Preferred Stock” means, with respect to any Person, all capital stock issued by such
Person that is entitled to a preference or priority over any other capital stock issued by such
Person with respect to any distribution of such Person’s assets, whether by dividend or upon any
voluntary or involuntary liquidation, dissolution or winding up.



     “Proceeding” has the meaning specified in Section 1602.



     “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 specified in the related Officers’ Certificate or supplemental indenture contemplated by and
pursuant to Section 301, at which it is to be redeemed pursuant to this Indenture.



     “Reference Date” has the meaning specified in Section 1704.



     “Registered Security” shall mean any Security which is registered in the Security
Register.



     “Regular Record Date” for the interest payable on any Interest Payment Date on the
Registered Securities of or within any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.



     “Repayment Date” means, when used with respect to any Security to be repaid at the
option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.



     “Repayment Price” means, when used with respect to any Security to be repaid at the
option of the Holder, the price at which it is to be repaid by or pursuant to this Indenture.



     “Responsible Officer,” when used with respect to the Trustee, means any Vice President
(whether or not designated by a number or a word or words added before or after the title “Vice
President”), Assistant Vice President, Trust Officer or Assistant Trust Officer working in its
Corporate Trust Department, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and working in its Corporate
Trust Department, and also means, with respect to a particular corporate trust matter,



9









 







any other
officer to whom such matter is referred because of such officer’s knowledge and familiarity with
the particular subject and who shall have direct responsibility for the administration of this
Indenture.



     “Rights” has the meaning specified in Section 1704.



     “Rights Record Date” has the meaning specified in Section 1704.



     “Securities Payment” has the meaning specified in Section 1602.



     “Security” and “Securities” has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or Securities authenticated and delivered
under this Indenture; provided, however, that, if at any time there is more than
one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not Trustee.



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



     “Senior Indebtedness” means Indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed or guaranteed by the Company, other
than the following: (1) any Indebtedness as to which, in the instrument evidencing such
Indebtedness or pursuant to which such Indebtedness was issued, it is expressly provided that such
Indebtedness is subordinate in right of payment to all Indebtedness of the Company not expressly
subordinated to such Indebtedness; (2) any Indebtedness which by its terms refers explicitly to the
Securities and states that such Indebtedness shall not be senior, shall be pari
passu or shall be subordinated in right of payment to the Securities; and (3) with respect
to any series of Securities, any Indebtedness of the Company evidenced by Securities of the same or
of another series. Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
shall not include: (a) Indebtedness of or amounts owed by the Company for compensation to
employees, or for goods, materials or services purchased in the ordinary course of business, or
(b) Indebtedness of the Company to a Subsidiary of the Company.



     A “Series” of Securities means all securities denoted as part of the same series
authorized by or pursuant to a particular Board Resolution.



     “Short Term Rights” has the meaning specified in Section 1704.



     “Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” (as
defined in Article I, Rule 1-02 of Regulation S-X, promulgated under the Securities Act of 1933, as
amended) of the Company.



     “Special Record Date” for the payment of any Defaulted Interest on the Registered
Securities of or within any series means a date fixed by the Company pursuant to Section 307.



10









 





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



     “Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership or other entity of which a majority of (i) the voting power of the voting
equity securities or (ii) the outstanding equity interests are owned, directly or indirectly, by
such Person. For the purposes of this definition, “voting equity securities” means equity
securities having voting power for the election of directors, whether at all times or only so long
as no senior class of security has such voting power by reason of any contingency.



     “Trading Day” means any day on which the NASDAQ Global Market is open for business.



     “Trigger Events” has the meaning specified in Section 1704.



     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed, except as provided in
Section 905.



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



     “Unadjusted Distribution” has the meaning specified in Section 1704.



     “United States” means, unless otherwise specified with respect to any Securities
pursuant to Section 301, the United States of America (including the states and the District of
Columbia), its territories, its possessions and other areas subject to its jurisdiction.



     “United States Person” means, unless otherwise specified with respect to any
Securities pursuant to Section 301, an individual who is a citizen or resident of the United
States, a
corporation, partnership or other entity created or organized in or under the laws of the
United States or an estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.



     “Yield to Maturity” means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent redetermination of interest on such Security) and
as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.



     SECTION 102. 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



11









 







precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents 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 (including certificates delivered pursuant to Section 1008) shall include:




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




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




     (3) a statement that, in the opinion of 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 condition or covenant 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 103. Form of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations may
be based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the information as to such
factual matters is in the possession 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 104. Acts of Holders.



12









 





          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided
in this Section. The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.




          (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 his 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 reasonable manner which the Trustee deems sufficient.




          (c) The ownership of Registered Securities shall be proved by the Security Register. As to
any matter relating to beneficial ownership interests in any Global Security, the appropriate
depository’s records shall be dispositive for purposes of this Indenture.




          (d) The ownership of Bearer Securities may be proved by the production of such Bearer
Securities or by a certificate executed, as depository, by any trust company, bank, banker or other
depository, wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security
is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no




13









 




longer
Outstanding. The ownership of Bearer Securities may also be proved in any other manner which the
Trustee deems sufficient.




          (e) If the Company shall solicit from the Holders of Registered Securities any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c),
such record date shall be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation is completed. If
such a record date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding Securities have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than eleven months after the record date.




          (f) 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 upon the conversion thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such Security.




     SECTION 105. Notices, etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,




     (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at
[                    ] or at any other address previously furnished in writing to the
Company by the Trustee, Attention: [                    ]; or




     (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 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, Attention: Chief Financial Officer; or




     (3) either the Trustee or the Company, by the other party or by any Holder, shall be
sufficient for every purpose hereunder if given by facsimile transmission, receipt



14









 







confirmed
by telephone followed by an original copy delivered by guaranteed overnight courier; if to
the Trustee at facsimile number [                    ]; and if to the Company at facsimile number
[                    ].



     SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for notice of any
event to Holders of Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his address as it
appears in the 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 of Registered Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice.



     If by reason of the suspension of or irregularities in regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such notification to
Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute
a sufficient notification to such Holders for every purpose hereunder.



     Except as otherwise expressly provided herein or otherwise specified with respect to any
Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest date, if any, and
not earlier than the earliest date, if any, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of such publication or, if published more
than once, on the date of the first such publication.



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



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



     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



15









 







the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



     SECTION 107. Counterparts; Effect of Headings and Table of Contents. This Indenture may be
executed in any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the same Indenture. The
Article and Section headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.



     SECTION 108. Successors and Assigns. All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.



     SECTION 109. Severability Clause. In case any provision in this Indenture or in any
Security or coupon shall be held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the Securities or
coupons, if any, express or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and
the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture.



     SECTION 111. Governing Law. This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the laws of the State of New York. This Indenture is
subject to the provisions
of the TIA that are required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.



     SECTION 112. Legal Holidays. In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any Security or the last
date on which a Holder has the right to convert or exchange a Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu hereof), payment of interest or principal (and premium or
Make-Whole Amount, if any) or conversion or exchange of such Security need not be made at such
Place of Payment on such date, but (except as otherwise provided in the supplemental indenture with
respect to such Security) may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment
Date or sinking fund payment date, or at the Stated Maturity or Maturity, or on such last day for
conversion or exchange, provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.



     SECTION 113. Limited Liability; Immunity of Stockholders, Directors, Officers and Agents of the
Company. Notwithstanding any other provision of this Indenture or of the Securities of any
series to the contrary, no recourse under or upon any obligation, covenant or agreement contained
in this Indenture or in any Security, or for the payment of any sums due on



16









 







account of any
indebtedness evidenced thereby, including without limitation principal, premium or interest, if
any, or for any claim based on this Indenture or any Security or otherwise in respect of this
Indenture or any Security, shall be had, whether by levy or execution or otherwise, against (i) the
Company, the Company’s assets or against any past, present or future stockholder, employee,
officer, director or agent, as such, of the Company or any successor, either directly or through
the Company or any successor, under any rule of law, statute, constitutional provision or by the
enforcement of any assessment or penalty, or by any legal or equitable proceeding or otherwise, nor
shall any such parties be personally liable for any such amounts, obligations or claims, or liable
for any deficiency judgment based thereon or with respect thereto, it being expressly understood
that the sole remedies hereunder or under any other document with respect to the Securities against
such parties with respect to such amounts, obligations or claims shall be against the Company and
that all such liability of and recourse against such parties is expressly waived and released by
the acceptance of the Securities by the Holders and as part of the consideration for the issue of
the Securities.



     SECTION 114. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies
or conflicts with another provision hereof which is required or deemed to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such required provision 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 to be excluded, as
the case may be.



ARTICLE TWO — SECURITIES FORMS




     SECTION 201. Forms of Securities. The Registered Securities, if any, of each series and
the Bearer Securities, if any, of each series and related coupons shall be substantially in the
form of Exhibit A hereto or in such other form as shall be established in one or more
indentures supplemental hereto or approved from time to time by or pursuant to a Board Resolution
in accordance with Section 301, shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any
over-the-counter market or securities exchange, on which the Securities may be quoted or listed, or
to conform to usage.



     Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have
interest coupons attached.



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



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     SECTION 202. Form of Trustee’s Certificate of Authentication. Subject to Section 611, the
Trustee’s certificate of authentication shall be in substantially the following form:



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



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	,	 
	 	 	 	 	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	Authorized Signatory	 	 






     SECTION 203. Securities Issuable in Global Form. If Securities of or within a series are
issuable in the form of one or more Global Securities, then, notwithstanding clause (8) of Section
301 and the provisions of Section 302, any such Global Security or Securities may provide that it
or they shall represent the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also
provide that the aggregate amount of



     Outstanding Securities of such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of any Global Security to reflect the amount, or
any increase or decrease in the amount, or changes in the rights of Holders thereof, of Outstanding
Securities represented thereby shall be made (or caused to be made) by the Trustee in such manner
or by such Person or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Global Security in permanent
global form in the manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Global Security shall be in writing but need not comply with Section
102 and need not be accompanied by an Opinion of Counsel.



     The provisions of the last sentence of Section 303 shall apply to any Security represented by
a Global Security if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.



     Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by
Section 301, payment of principal of and any premium or Make-Whole Amount, if any, and interest on
any Global Security in permanent global form shall be made to the registered Holder thereof.



     Notwithstanding the provisions of Section 308 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent Global
Security (i) in the case of a permanent Global Security in registered form, the Holder of



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such
permanent Global Security in registered form, or (ii) in the case of a permanent Global Security in
bearer form, Euroclear or Clearstream.



     Any Global Security authenticated and delivered hereunder shall bear a legend in substantially
the following form:



     “This Security is a Global Security within the meaning set forth in the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a Depository. This
Security is exchangeable for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the Indenture, and may not
be transferred except as a whole by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository or by the Depository or
its nominee to a successor Depository or its nominee.”



ARTICLE THREE — THE SECURITIES




     SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.



     The Securities may be issued in one or more series, each of which shall be authorized pursuant
to Board Resolutions of the Company. There shall be established in one or more Board Resolutions
or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, 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, including “CUSIP” numbers (which shall
distinguish the Securities of such series from all other series of Securities);




     (2) Any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or upon conversion of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305) and the minimum authorized denominations with respect to the Securities of such
series;




     (3) The price (expressed as a percentage of the principal amount thereof) at which such
Securities will be issued and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of acceleration of the maturity
thereof or (if applicable) the portion of the principal amount of such Securities that is
convertible into Common Stock or the method by which any such portion shall be determined.




     (4) If convertible, the terms on which such Securities are convertible, including the
initial conversion price or rate and the conversion period and any applicable limitations on
the ownership or transferability of Common Stock or Preferred Stock receivable on
conversion;




     (5) The date or dates, or the method for determining such date or dates, on which the
principal of such Securities will be payable;



19









 






     (6) The rate or rates (which may be fixed or variable), or the method by which such
rate or rates shall be determined, at which such Securities will bear interest, if any;




     (7) The date or dates, or the method for determining such date or dates, from which any
such interest will accrue, the Interest Payment Dates on which any such interest will be
payable, the Regular Record Dates for such Interest Payment Dates, or the method by which
such dates shall be determined, the Persons to whom such interest shall be payable, and the
basis upon which interest shall be calculated if other than that of a 360-day year of twelve
30-day months;




     (8) The Make-Whole Amount, if any, or method for determining the Make-Whole Amount, if
any, payable with respect to such Securities, and the terms upon which such amount, if any,
will be payable;




     (9) The place or places where the principal of (and premium or Make-Whole Amount, if
any) and interest, if any, on such Securities will be payable, where such Securities may be
surrendered for registration of transfer or conversion or exchange and
where notices or demands to or upon the Company in respect of such Securities and this
Indenture may be served;




     (10) The period or periods, if any, within which, the price or prices at which and the
other terms and conditions upon which such Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, as a whole or in part, at the option of the
Company;




     (11) The obligation, if any, of the Company to redeem, repay or purchase such
Securities pursuant to any sinking fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities will be redeemed, repaid or purchased, as a
whole or in part, pursuant to such obligation;




     (12) If other than Dollars, the currency or currencies in which such Securities are
denominated and payable, which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies, the manner of determining the equivalent
thereof in Dollars for purposes of the definition of “Outstanding” in Section 101, and the
terms and conditions relating thereto;




     (13) Whether the amount of payments of principal of (and premium or Make-Whole Amount,
if any, including any amount due upon redemption, if any) or interest on such Securities may
be determined with reference to an index, formula or other method (which index, formula or
method may, but need not be, based on the yield on or trading price of other securities,
including United States Treasury securities or on a currency, currencies, currency unit or
units, or composite currency or currencies) and the manner in which such amounts shall be
determined;




     (14) Whether the principal of (and premium or Make-Whole Amount, if any) or interest on
the Securities of the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions upon which, such election
may be made, and the time and manner of, and identity of the



20









 







exchange rate agent with
responsibility for, determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies, currency unit or units
or composite currency or currencies in which such Securities are to be so payable;




     (15) Provisions, if any, granting special rights to the Holders of Securities of the
series upon the occurrence of such events as may be specified;




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




     (17) Whether and under what circumstances the Company will pay any additional amounts
on such Securities in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such Securities
in lieu of making such payment;




     (18) Whether Securities of the series are to be issuable as Registered Securities,
Bearer Securities (with or without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of the series are to
be issuable initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security may, or shall be
required to, exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such exchanges may,
or shall be required to, occur, if other than in the manner provided in the Indenture, and,
if Registered Securities of the series are to be issuable as a Global Security, the identity
of the depository for such series;




     (19) The date as of which any Bearer Securities of the series and any temporary Global
Security representing outstanding Securities of the series shall be dated if other than the
date of original issuance of the first Security of the series to be issued;




     (20) The Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary Global Security on an
Interest Payment Date will be paid if other than in the manner provided herein;
provided, however, in each case, that the manner of determining
such Person or making such payment shall be acceptable to the Trustee (as not
imposing on it any undue administrative burden or risk of liability);




21











 






     (21) The applicability, if any, of the Defeasance and Covenant Defeasance provisions of
Article Fourteen hereof to the Securities of the series;




     (22) The obligation, if any, of the Company to permit the conversion of the Securities
of such series into Common Stock or Preferred Stock, as the case may be, and the terms and
conditions upon which such conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any adjustment of the applicable
conversion price and any requirements relative to the reservation of such shares for
purposes of conversion);




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




     (24) Designation of the Trustee, if different from the Trustee under the Indenture,
with respect to such series and the terms applicable to such Trustee (which shall be
accepted by such Trustee by its execution and delivery of a supplemental indenture as
provided therein); and




     (25) Any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture).



     All Securities of any one series and the coupons appertaining to any Bearer Securities of such
series shall be substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers’ Certificate or in any such indenture
supplemental hereto. All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.



     If any of the terms of the Securities of any series are established by action taken pursuant
to one or more Board Resolutions, a copy of an appropriate record of such action(s) shall be
certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officers’ Certificate setting forth the terms of the Securities of
such series.



     SECTION 302. Denominations. The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions with respect to the
Securities of any series, the Securities of such series, other than Global Securities (which may be
of any denomination), shall be issuable in denominations of $1,000 and any integral multiple
thereof or the equivalent amounts thereof in the case of Securities denominated in the Foreign
Currency or currency unit.



     SECTION 303. Execution, Authentication, Delivery and Dating. The Securities and any
coupons appertaining thereto shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, or one of its Vice Presidents, under its corporate seal reproduced thereon, and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the Securities and coupons
may be manual



22









 







or facsimile signatures of the present or any future such authorized officer and may
be imprinted or otherwise reproduced on the Securities.



     Securities and coupons 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 or did not hold such offices at the date of such Securities or coupons.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series, together with any coupon appertaining thereto,
executed by the Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities (accompanied by a copy of the Board Resolution and
the Officers’ Certificate or supplemental indenture contemplated by Section 301), and the Trustee
in accordance with the Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Security shall have furnished
a certificate to Euroclear or Clearstream, as the case may be, in the form set forth in Exhibit
B-1 to this Indenture or such other certificate as may be specified by the Company with respect
to any series of Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on which any temporary
Security first becomes exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture. If any Security shall be represented by a permanent Global
Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s
interest therein upon original issuance of such Security or upon exchange of a portion of a
temporary Global Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner’s interest in such permanent Global Security. Except as permitted by
Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.



     If all the Securities of any series are not to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit, such Company Order
may set forth procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
315(d)) shall be fully protected in relying upon,




     (i) an Opinion of Counsel stating that




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



23









 






     (b) the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture; and




     (c) such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
Company to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors’ rights generally and
to general equitable principles; and




     (ii) an Officers’ Certificate stating that all conditions precedent provided
for in this Indenture relating to the issuance of the Securities have been complied
with and that, to the best of the knowledge of the signers of such certificate, that
no Event of Default with respect to any of the Securities shall have occurred and be
continuing.



     If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities (or to enter into the related supplemental indenture, if applicable)
if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights,
duties, obligations or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.



     Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all the
Securities of any series are not to be issued at one time, it shall not be necessary to deliver an
Officers’ Certificate otherwise required pursuant to Section 301 or a Company Order, or an Opinion
of Counsel or an Officers’ Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion and certificates,
with appropriate modifications to cover such future issuances, shall be delivered at or before the
time of issuance of the first Security of such series.



     Each Registered Security shall be dated the date of its authentication and each Bearer
Security shall be dated as of the date specified as contemplated by Section 301.



     No Security or coupon shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the form provided for herein duly
executed by the Trustee (subject to Section 611) by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security (including
a Global Security) shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for cancellation as



24









 







provided in Section 309 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.



     SECTION 304. Temporary Securities.



          (a) Pending the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by their execution of
such Securities. In the case of Securities of any series, such temporary Securities may be in
global form.




     Except in the case of temporary Global Securities (which shall be exchanged as otherwise
provided herein or as otherwise provided in or pursuant to a Board Resolution or supplemental
indenture pursuant to Section 301), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without unreasonable delay. After
the preparation of definitive Securities of such series, 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 a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any non-matured coupons appertaining thereto), the Company
shall execute (in accordance with a Company Order delivered at or prior to the authentication of
the first definitive security to such series) and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security
only in compliance with the conditions set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.



          (b) Unless otherwise provided in or pursuant to a Board Resolution or supplemental indenture
pursuant to Section 301, the following provisions of this Section 304(b) shall govern the exchange
of temporary Securities other than through the facilities of the DTC. If any such temporary
Security is issued in global form, then such temporary Global Security shall, unless otherwise
provided therein, be delivered to the London office of a depository or common depository upon and pursuant to written direction of the Company (the “Common
Depository”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts
of the beneficial owners of such Securities (or to such other accounts as they may direct).



25









 







     Without unnecessary delay but in any event not later than the date specified in, or determined
pursuant to the terms of, any such temporary Global Security (the “Exchange Date”), the Company
shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the Company. On or after the
Exchange Date, such temporary Global Security shall be surrendered by the Common Depository to the
Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like tenor as the
portion of such temporary Global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary Global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered form, or any combination thereof,
as specified as contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof (as directed by or pursuant to information provided by
the Common Depository); provided, however, that, unless otherwise specified in such
temporary Global Security, upon such presentation by the Common Depository, such temporary Global
Security shall be accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for its account then
to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B-2 to this Indenture or in such other
form as may be established pursuant to Section 301; and provided further that
definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global
Security only in compliance with the requirements of Section 303.



     Unless otherwise specified in such temporary Global Security, the interest of a beneficial
owner of Securities of a series in a temporary Global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in
Exhibit B-1 to this Indenture (or in such other form as may be established pursuant to
Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary Global Security, except that a Person receiving definitive Securities must
bear the cost of insurance, postage, transportation and the like unless such Person takes delivery
of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive
Securities in bearer form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only to an address located outside the United States.



     Until exchanged in full as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a temporary Global



26









 







Security
on an Interest Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon
delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form
set forth in Exhibit B-2 to this Indenture (or in such other forms as may be established
pursuant to Section 301), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as
the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth as Exhibit B-1 to this
Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this Section 304(b) and
of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are
the beneficial owners of the temporary Global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no
payments of principal or interest owing with respect to a beneficial interest in a temporary Global
Security will be made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and
Clearstream and not paid as herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order to be repaid to the Company.



     With respect to Exhibit B-1 or B-2 to this Indenture, the Company may, in its discretion and
if required or desirable under applicable law, substitute one or more other forms of such exhibits
for such exhibits, eliminate the requirement that any or all certificate be provided, or change the
time that any certificate may be required, provided that such substitute form or
forms or notice of elimination or change of such certification requirement have theretofore been
delivered to the Trustee with a Company Request and such form or forms, elimination or change is
reasonably acceptable to the Trustee.



     SECTION 305. Registration, Registration of Transfer, Conversion and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency of
the Company in a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the “Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for the registration of
Registered Securities and of transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “Security
Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities on such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine, and be provided a copy
of, the Security Register at all reasonable times.



27









 





     Subject to the provisions of this Section 305, upon surrender for registration of transfer of
any Registered Security of any series at any office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal amount, bearing a number
not contemporaneously outstanding, and containing identical terms and provisions.



     Subject to the provisions of this Section 305, at the option of the Holder, Registered
Securities of any series may be exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such 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. Unless otherwise specified
with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.



     If (but only if) permitted by the applicable Board Resolution and (subject to Section 303) set
forth in the applicable Officers’ Certificate, or in any indenture supplemental hereto, delivered
as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company (or to the Trustee
for the Security in case of matured coupons in default) in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in a permitted exchange
for a Registered Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with the



28









 







provisions of this
Indenture. 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.



     Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any permanent Global Security shall be exchangeable only as provided in this paragraph. If the
depository for any permanent Global Security is DTC, then, unless the terms of such Global Security
expressly permit such Global Security to be exchanged in whole or in part for definitive
Securities, a Global Security may be transferred, in whole but not in part, only to a nominee of
DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected or
approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depository for the applicable Global Security
or Securities or if at any time DTC ceases to be a clearing agency registered under the Exchange
Act if so required by applicable law or regulation, the Company shall appoint a successor
depository with respect to such Global Security or Securities. If (w) a successor depository for
such Global Security or Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or ineligibility, (x) the
Company delivers to the Trustee for Securities of such series in registered form a Company Order
stating that the Securities of such series shall be exchangeable, (y) an Event of Default has
occurred and is continuing and the beneficial owners representing a majority in principal amount of
the applicable series of Securities represented by such Global Security or Securities advise DTC to
cease acting as depository for such Global Security or Securities or (z) the Company, in its sole
discretion, determines at any time that all Outstanding Securities (but not less than all) of any
series issued or issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities, then the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount of such Global
Security or Securities. If any beneficial owner of an interest in a permanent global Security is
otherwise entitled to exchange such interest for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent Global Security shall
have been given, then without unnecessary delay but in any event not later than the earliest date
on which such interest may be so exchanged, the Company shall execute, and the Trustee shall
authenticate and deliver definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner’s interest in such permanent Global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent Global Security shall be
surrendered for exchange by DTC or such other depository as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company’s agent for such purpose; provided,
however, that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among those selected for
redemption; and provided further that no Bearer Security delivered in exchange for
a portion of a permanent Global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued
in exchange for any portion of a permanent Global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special



29









 







Record Date and the opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect
of such Registered Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of such portion of such
permanent Global Security is payable in accordance with the provisions of this Indenture.



     All Securities issued upon any registration of transfer or conversion 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 conversion or exchange.



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



     No service charge shall be made to the Holder for any registration of transfer or conversion
or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any registration of transfer or
conversion or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or
1305 not involving any transfer.



     The Company or the Trustee, as applicable, shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those selected for redemption
during a period beginning at the opening of business 15 days before selection of the Securities to
be redeemed under Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption
and (B) if such Securities are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Registered Security so selected for redemption in whole or in part,
except, in the case of any Registered Security to be redeemed in part, the portion thereof not to
be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and like tenor,
provided that such Registered Security shall be simultaneously surrendered for redemption,
or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such Security not to be so
repaid.



     Furthermore, notwithstanding any other provision of this Section 305, the Company will not be
required to exchange any Securities if, as a result of the exchange, the Company would suffer
adverse consequences under any United States law or regulation.



30









 





     SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee or the
Company, together with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them harmless, the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.



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



     Notwithstanding the provisions of the previous two paragraphs, 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, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or coupon if the
applicant for such payment shall furnish to the Company and the Trustee for such Security such
security or indemnity as may be required by them to save each of them harmless, and in the case of
destruction, loss or theft, evidence satisfactory to the Company and Trustee and any agent of any
of them of the destruction, loss or theft of such Security and the ownership thereof;
provided, however, that payment of principal of (and premium or Make-Whole Amount,
if any), and interest, if any, on, Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be
payable only upon presentation and surrender of the coupons appertaining thereto.



     Upon the issuance of any new Security under this Section, 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 of any series with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and



31









 







shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.



     The provisions of this Section 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. Except as otherwise specified
with respect to a series of Securities in accordance with the provisions of Section 301, interest
on any Registered Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest payment at the office or agency of the Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest on any
Registered Security may at the Company’s option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or (ii) transfer to an account
maintained by the payee located inside the United States.



     Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any
series, payment of interest may be made, in the case of a Bearer Security, by transfer to an
account maintained by the payee with a bank located outside the United States.



     Unless otherwise provided as contemplated by Section 301, every permanent Global Security will
provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear
and/or Clearstream, as the case may be, with respect to that portion of such permanent Global
Security held for its account by Cede & Co. or the Common Depository, as the case may be, for the
purpose of permitting such party to credit the interest received by it in respect of such permanent
Global Security to the accounts of the beneficial owners thereof.



     In case a Bearer Security of any series is surrendered in exchange for a Registered Security
of such series after the close of business (at an office or agency in a Place of Payment for such
series) on any Regular Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance with the provisions of
this Indenture.



     Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 301, any interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder thereof on
the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:



32









 






     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Registered Securities of such series (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 Registered Security of such series and the date of the proposed payment (which shall
not be less than 20 days after such notice is received by the Trustee), and at the same time
the Company shall deposit with the Trustee an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for the Securities
of such series) equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when 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 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities
of such series at his address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publications 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 the
Registered Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or agency on
any Special Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this Indenture.




     (2) The Company may make payment of any Defaulted Interest on the Registered Securities
of any series in any other lawful manner not inconsistent with the requirements of any
over-the-counter market or securities exchange on which such Securities may be quoted or
listed, and upon such notice as may be required by such market or exchange, if, after notice
given by the Company to the Trustee of the proposed



33









 






payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.



     Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or upon conversion 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 of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, 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. All such payments so made to any such Person, or upon such Person’s order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for money payable upon any such Security.



     Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer
Security and the Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such 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.



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



     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 depository, as a Holder,
with respect to such Global Security or impair, as between such depository and owners of beneficial interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such depository (or its nominee) as Holder of such Global
Security.



     SECTION 309. Cancellation. All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or conversion or exchange or for
credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose, upon direction by the



34









 







Company, shall be promptly cancelled 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 may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.
If the Company shall so 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. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and coupons held by the Trustee shall
be disposed of by the Trustee in accordance with its customary practices (subject to the record
retention requirements of the Exchange Act).



     SECTION 310. Computation of Interest. Except as otherwise specified as contemplated by
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 consisting of twelve 30-day months.



     SECTION 311. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided, however, that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the “CUSIP” numbers.



ARTICLE FOUR — SATISFACTION AND DISCHARGE




     SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company
Request cease to be of further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer or conversion or
exchange of Securities of such series herein expressly provided for), and the Trustee, upon receipt
of a Company Order, and at the expense of the Company, shall execute instruments in form and substance satisfactory to the Trustee and the
Company acknowledging satisfaction and discharge of this Indenture as to such series when




     (1) either




     (A) all Securities of such series theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as provided
in Section 305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of such series for



35









 






whose payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or




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




     (i) have become due and payable, or




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




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


and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities
and such coupons not theretofore delivered to the Trustee for cancellation, for principal (and
premium or Make-Whole Amount, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;





     (2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and




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


Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee and any predecessor Trustee under Section 606, the obligations of the Company to any
Authenticating Agent under Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and
discharge.




     SECTION 402. Application of Trust Funds. Subject to the provisions of the last paragraph
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 Securities, the coupons 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 or Make-Whole Amount, if any), and any interest for



36









 







whose payment such money has been deposited with or received by 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 with respect to
any particular series of Securities, means any one of the following events (whatever the reason for
such Event of Default and whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):




     (1) default in the payment of any interest on any Security of that series or of any
coupon appertaining thereto, when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or




     (2) default in the payment of the principal of (or premium or Make-Whole Amount, if
any, on) any Security of that series when it becomes due and payable at its Maturity; or




     (3) default in the deposit of any sinking fund payment, to the extent applicable to
such series of Securities, when and as due by the terms of any Security of that series; or




     (4) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture with respect to any Security of that series (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture solely for
the benefit of a series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or




     (5) the Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




     (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or




     (D) makes a general assignment for the benefit of its creditors; or




     (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:



37









 






     (A) is for relief against the Company or any Significant Subsidiary in an
involuntary case,




     (B) appoints a Custodian of the Company or any Significant Subsidiary or for
all or substantially all of either of its property, or




     (C) orders the liquidation of the Company or any Significant Subsidiary, and
the order or decree remains unstayed and in effect for 90 days; or




     (7) any other Event of Default provided with respect to Securities of that series.



     As used in this Section 501, the term “Bankruptcy Law” means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors and the term “Custodian” means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy Law.



     SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default
with respect to Securities of any series at the time Outstanding occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if Securities of that
Series are Original Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by the
Holders), and upon any such declaration such principal or specified portion thereof shall become
immediately due and payable.



     At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration of acceleration and its consequences if:




     (1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the
currency, currency unit or composite currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Securities of such
series):




     (A) all overdue installments of interest on all Outstanding Securities of that
series and any related coupons,




     (B) the principal of (and premium or Make-Whole Amount, if any, on) any
Outstanding Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,




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



38









 






     (D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and




     (2) all Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of (or premium or Make-Whole Amount, if any) or interest on
Securities of that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.


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




     SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if:




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




     (2) default is made in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) any Security of any series at its Maturity,


then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders of such Securities of such series and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest,
with interest upon any overdue principal (and premium or Make-Whole Amount, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon any overdue installments of
interest at the rate or rates borne by or provided for in such Securities, 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 and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities of such series 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 of such series, wherever
situated.



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



     SECTION 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 the



39









 







Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal, premium or
Make-Whole Amount, if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:




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




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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such
series and coupons to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.




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



     In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Securities, and it shall not be necessary
to make any Holders of the Securities parties to any such proceedings.



     SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons. All
rights of action and claims under this Indenture or any of the Securities or coupons may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities and coupons in respect of which such judgment has been recovered.



40









 





     SECTION 506. Application of Money Collected. Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest, upon presentation of the Securities or coupons, or both, as the case
may be, and the notation thereon of the payment if only partially paid and upon surrender thereof
if fully paid:



     FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under
Section 606;



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



     THIRD: To the payment of the remainder, if any, to the Company.



     SECTION 507. Limitation on Suits. No Holder of any Security of any series or any related
coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:




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




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




     (3) such Holder or Holders have offered to the Trustee 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
indemnity has failed to institute any such proceeding; and




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


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such Holders.




     SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount,
if any, and Interest. Notwithstanding any other provision in this



41









 







Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment of
the principal of (and premium or Make-Whole Amount, if any) and (subject to Sections 305 and 307)
interest on such Security or payment of such coupon on the respective due dates expressed in such
Security or coupon (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 of a
Security or coupon has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such case, the Company,
the Trustee and the Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and 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 or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities or coupons is intended to be exclusive of any other right or
remedy, and 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 or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.



     SECTION 512. Control by Holders of Securities. The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Securities of such
series, 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 if a Responsible Officer or Responsible
Officers of the Trustee shall in good faith, determine that at the proceeding



42









 






so directed would involve the Trustee in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.



     Nothing in this Indenture shall impair the right of the Trustee in the good faith discretion
of a Responsible Officer or Responsible Officers of the Trustee to take any action deemed, in good
faith by a Responsible Officer or Responsible Officers of the Trustee, proper and which is not
inconsistent with such direction by Holders.



     SECTION 513. Waiver of Past Defaults. The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default hereunder with respect to
such series and its consequences, except a default




     (1) in the payment of the principal of (or premium or Make-Whole Amount, if any) or
interest on any Security of such series or any related coupons, or




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




     (3) in respect of a covenant or provision hereof for the benefit or protection of the
Trustee, without its express written consent.



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



     SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.



     SECTION 515. Undertaking for Costs. All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the



43









 







payment of the principal of (or premium or Make-Whole Amount, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).



ARTICLE SIX — THE TRUSTEE




     SECTION 601. Notice of Defaults. Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner
and to the extent provided in TIA Section 313(c), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security of such series, or in the payment of any sinking or
purchase fund installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the Holders of the
Securities and coupons of such series; and provided further that in the case of any
default or breach of the character specified in Section 501(4) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least 45 days after the
occurrence thereof. For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.



     SECTION 602. Certain Rights of Trustee. Subject to the provisions of TIA Section 315(a)
through 315(d):




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




     (2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order (other than delivery of any Security,
together with any coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;




     (3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence 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 of its own selection and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;



44









 






     (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 of
Securities of any series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity 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, coupon 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 to examine the books, records
and premises of the Company, relevant to the facts or matters that are the subject of its
inquiry, personally or by agent or attorney;




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




     (8) the Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;




     (9) any permissive right or power available to the Trustee under this Indenture or any
supplement hereto shall not be construed to be a mandatory duty or obligation;




     (10) the Trustee shall not be charged with knowledge of any matter (including any
default, other than as described in Section 501(1), (2) or (3)) unless and except to the
extent actually known to a Responsible Officer of the Trustee or to the extent written
notice thereof is received by the Trustee at the Corporate Trust Office; and




     (11) the Trustee shall have no liability for any inaccuracy in the books and records
of, or for any actions or omissions of, DTC, Euroclear or Clearstream or any depository
acting on behalf of any of them.




     (12) 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 by the Trustee to act hereunder; and




     (13) the Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by
any person authorized to sign an Officers’ Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.



     The Trustee shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of



45









 







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.



     SECTION 603. Not Responsible for Recitals or Issuance of Securities. The recitals
contained herein and in the Securities, except the Trustee’s certificate of authentication, and in
any coupons shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities or
coupons, except that the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof. The Trustee shall have no responsibility with respect to any
information, statement or recital in any offering prospectus or other disclosure materials prepared
or distributed with respect to the Securities.



     SECTION 604. May Hold Securities. The Trustee, any Paying Agent, Security Registrar,
Authenticating Agent or any other agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.



     SECTION 605. Money Held in Trust. Money 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 money received by it hereunder except as otherwise agreed in writing
with the Company.



     SECTION 606. Compensation and Reimbursement. The Company agrees:




     (1) to pay to the Trustee as agreed upon in writing from time to time reasonable
compensation 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 each of the Trustee and
any predecessor Trustee upon its request for all reasonable expenses, and disbursements
incurred by the Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its agents and
counsel), except any such expense or disbursement as shall be determined to have been caused
by its own negligence, willful misconduct or bad faith; and




     (3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it
harmless against, any loss, liability, claim, damage or expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the costs



46









 






and expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(7) or Section 501(8), 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.



     As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien for payment of the Trustee’s fees and expenses 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 (or premium or Make-Whole Amount, if any) or interest on particular
Securities or any coupons.



     The provisions of this Section shall survive the termination of this Indenture and the
resignation or removal of the Trustee.



     SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests. There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee under
TIA Section 310(a)(1) and shall have at all times a combined capital and surplus of at least
$50,000,000 (or which shall have a combined capital and surplus of at least $10,000,000 and whose
ultimate parent holding company shall have a combined capital and surplus of at least $50,000,000.
If the Trustee publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of the Trustee
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 shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall serve as Trustee.



     SECTION 608. 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 shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 609.




     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 60 days after the giving of such notice
of resignation, the resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.




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



47









 






successor Trustee shall not have been delivered to the Trustee within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.




     (d) If at any time:




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




     (2) the Trustee shall cease to be eligible under Section 607 and shall fail to resign
after written request therefor by the Company or by any Holder of a Security who has been a
bona fide Holder of a Security for at least six months, or




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


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




              (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 one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.




              (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series in the manner provided for notices to the



48









 






Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.




     SECTION 609. Acceptance of Appointment by Successor.



          (a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.




          (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.




          (c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 609, as the case
may be.



49









 







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




     SECTION 610. Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case any Securities or
coupons 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 or coupons so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities or coupons. In case any Securities
or coupons shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities or coupons, in either its own
name or that of its predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.



     SECTION 611. Appointment of Authenticating Agent. At any time when any of the Securities
remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon conversion or exchange, registration of transfer
or partial redemption or repayment thereof, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument
in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be
promptly furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding



50









 







to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or further act on the part of the Trustee or the
Authenticating Agent.



     An Authenticating Agent for any series of Securities may at any time resign by giving written
notice of resignation to the Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for
such series may appoint a successor Authenticating Agent which shall be acceptable to the Company
and shall give notice of such appointment to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve in the manner set forth in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.



     The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation including reimbursement of its reasonable expenses for its services under this
Section, subject to Section 606.



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



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



	 	 	 	 	 
	 
	 	 	 
	 	 	as Trustee
	 
	 	 	 	 
	Dated:                     

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	as Authenticating Agent
	 
	 	 	 	 
	Dated:                     

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	as Authenticating Agent






     SECTION 612. Certain Duties and Responsibilities of the Trustee.



          (a) With respect to the Securities of any series, except during the continuance of an Event of
Default with respect to the Securities of such series:





51












 






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




     (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; 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 shall not be under any duty to verify the contents or accuracy thereof.



          (b) In case an Event of Default with respect to the Securities of any series has occurred and
is continuing, the Trustee shall, with respect to Securities of such series, 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 man would exercise or use under the circumstances in the conduct of
his own affairs.




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




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




          (4) 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; and, the Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any Holder, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any loss, liability or
expense.





52









 








          (d) 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 612.




          (e) The Trustee shall not be liable for interest on any money or assets held by it except to
the extent the Trustee may agree in writing with the Company. Assets held in trust by the Trustee
need not be segregated from other assets except to the extent required by law.




ARTICLE SEVEN — HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




     SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of Securities or
coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA Section 312(b).



     SECTION 702. Reports by Trustee. The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required by TIA Section 313
at the times and in the manner provided by the TIA, which shall initially be not less than every
twelve months commencing on ___, 201___. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each over-the-counter market or
securities exchange, if any, upon which any Securities are quoted or listed, with the Commission
and with the Company. The Company will notify the Trustee when any Securities are quoted or listed
on any over-the-counter market or securities exchange or delisted therefrom.



     SECTION 703. Reports by Company. The Company will:




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




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



53









 






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




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



     SECTION 704. Company to Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:



          (a) semiannually, not later than 15 days after the Regular Record Date for interest for each
series of Securities, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Registered Securities of such series as of such Regular Record Date, or
if there is no Regular Record Date for interest for such series of Securities, semiannually, upon
such dates as are set forth in the Board Resolution or indenture supplemental hereto authorizing
such series, and




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



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




ARTICLE EIGHT — CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE




     SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions. The Company may consolidate with, or sell, lease or convey all
or substantially all of its assets to, or merge with or into any other corporation, provided that
in any such case, (1) either the Company shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the United States or a State thereof and such successor
corporation shall expressly assume the due and punctual payment of the principal of (and premium or
Make-Whole Amount, if any) and any interest on all of the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture, complying with Article Nine
hereof, satisfactory to the Trustee, executed and delivered to the Trustee by such corporation, (2)
immediately after giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or the lapse of time, or both, would become an Event of Default, shall



54









 




 have occurred and be continuing and (3) the Company shall have delivered to the Trustee the Officer’s
Certificate and Opinion of Counsel required pursuant to Section 803 below.




     SECTION 802. Rights and Duties of Successor Corporation. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All
the Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the execution hereof.



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



     SECTION 803. Officers’ Certificate and Opinion of Counsel. Any consolidation, merger,
sale, lease or conveyance permitted under Section 801 is also subject to the condition that the
Trustee receive an Officers’ Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.



ARTICLE NINE — SUPPLEMENTAL INDENTURES




     SECTION 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of Securities or coupons, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:




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




     (2) to add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (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



55









 






the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or




     (3) to add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however, that in
respect of any such additional Events of Default such supplemental indenture may provide for
a particular period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or may limit
the right of the Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive such default; or




     (4) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any restrictions on
the payment of principal of or premium or Make-Whole Amount, if any, or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in any material
respect; or




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




     (6) to secure the Securities; or




     (7) to establish the form or terms of Securities of any series and any related coupons
as permitted or contemplated by Sections 201 and 301; or




     (8) 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; or




     (9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of Securities of any series or any related
coupons in any material respect; or




     (10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the Defeasance and discharge of any series of Securities
pursuant to Sections 401, 1402 and 1403; provided that any such action shall



56









 






not adversely affect the interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or




     (11) to make provisions with respect to Holders’ rights of conversion with respect to
any series of Securities pursuant to Article Seventeen.



     SECTION 902. Supplemental Indentures with Consent of Holders. With the consent of the
Holders of not less than a majority in principal amount of all Outstanding Securities affected by
such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner
the rights of the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the consent
of the Holder of each Outstanding Security affected thereby:




     (1) change the Stated Maturity of the principal of (or premium or Make-Whole Amount, if
any, on) or any installment of principal of or interest on, any Security; or reduce the
principal amount thereof or the rate or amount of interest thereon, or any premium or
Make-Whole Amount payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable
in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of Payment where, or the currency
or currencies, currency unit or units or composite currency or currencies in which, any
Security or any premium or Make-Whole Amount or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or the Repayment Date, as the case may be), or (if Securities
of such series are convertible) adversely affect the right of the Holder to convert any
Security as provided in Article Seventeen, or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner materially adverse to the
Holders; or




     (2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of Section 1504 for
quorum or voting, or




     (3) modify any of the provisions of this Section, Section 513 or Section 1009, except
to increase the required percentage to effect such action or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder with respect to changes in
the references to “the Trustee” and concomitant changes in this Section 902 and



57









 






Section 1009, or the deletion of this proviso, in accordance with the requirements of Sections
609(b) and 901(11).



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



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



     SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 612) 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.



     SECTION 904. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.



     SECTION 905. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in
effect.



     SECTION 906. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.



ARTICLE TEN — COVENANTS




     SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any; and Interest.
The Company covenants and agrees for the benefit of the Holders of each series of Securities that
it will duly and punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Unless otherwise



58









 




specified as
contemplated by Section 301 with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they severally mature.
Unless otherwise specified with respect to Securities of any series pursuant to Section 301, at the
option of the Company (upon written notice to the Trustee), all payments of principal may be paid
by check to the registered Holder of the Registered Security or other Person entitled thereto
against surrender of such Security.




     SECTION 1002. Maintenance of Office or Agency. If Securities of a series are issuable only
as Registered Securities, the Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented or surrendered for
payment or conversion, where Securities of that series may be surrendered for registration of
transfer or conversion or exchange and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain: (A) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be surrendered for
conversion or exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment or conversion in the
circumstances described in the following paragraph (and not otherwise); (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if the Securities of
that series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for conversion or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment or conversion at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and demands.



     Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment
of principal, premium or Make-Whole Amount or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any



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address in the United States or by transfer to an account maintained with a bank located in the United States;
provided, however, that, if the Securities of a series are payable in Dollars,
payment of principal of and any premium or Make-Whole Amount and interest on any Bearer Security
shall be made at the office of the Company’s Paying Agent in the Borough of Manhattan, The City of
New York, if (but only if) payment in Dollars of the full amount of such principal, premium or
Make-Whole Amount, or interest, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.




     The Company may from time to time designate one or more other offices or agencies (in or
outside the Place of Payment) where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with respect to any
Securities pursuant to Section 301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities, each of (i) the office or agency of
the Company in the Borough of Manhattan, The City of New York, and (ii) the Corporate Trust Office
of the Trustee (as Paying Agent); and the Company hereby initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in such city; and the Company hereby initially appoints as
its agent to receive all such presentations, surrenders, notices and demands each of the Trustee,
at its Corporate Trust Office.



     Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of Securities, or
as so required, at least one exchange rate agent (of which it shall give written notice to the
Trustee).



     SECTION 1003. Money for Securities Payments to Be Held in Trust. If the Company shall at
any time act as its own Paying Agent with respect to any series of any Securities and any related
coupons, it will, on or before each due date of the principal of (and premium or Make-Whole Amount,
if any), or interest on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay
the principal (and premium or Make-Whole Amount, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents for any series of Securities and any
related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on any Securities of that series, deposit with a Paying Agent a sum
(in the currency or currencies, currency unit or units or composite



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currency or currencies described in the preceding paragraph) sufficient to pay the principal (and premium or Make-Whole
Amount, if any) or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or Make-Whole Amount, if any, or interest and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.




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




     (1) hold all sums held by it for the payment of principal of (and premium or Make-Whole
Amount, if any) or interest on Securities 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) in the making of any such payment of principal (and premium or Make-Whole
Amount, if any) or interest on the Securities of that series; 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.



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



     Except as otherwise provided in the Securities of any series, and subject to applicable laws,
any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium or Make-Whole Amount, if any) or interest on any
Security of any series and remaining unclaimed for two years after such principal (and premium or
Make-Whole Amount, if any) or interest has become due and payable shall be paid to the Company upon
Company Request or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium or Make-Whole Amount, if any) or interest on
any Security, without interest thereon, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.



     SECTION 1004. Existence. Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate



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existence, all material rights (by articles of incorporation, by-laws and statute) and material franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.




     SECTION 1005. Maintenance of Properties. The Company will cause all of its material
properties used or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order, normal wear and tear, casualty and
condemnation excepted, and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof (and the Company
may take out of service for a period of time, any of its properties that have been condemned or
suffered any loss due to casualty in order to make such repairs, betterments and improvements), all
as in the judgment of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that the Company and its Subsidiaries shall not be prevented from (i) removing
permanently any property that has been condemned or suffered a loss due to casualty based on the
Company’s reasonable judgment that such removal is in the best interest of the Company, or (ii)
selling or otherwise disposing of their properties for value in the ordinary course of business.



     SECTION 1006. Reserved.



     SECTION 1007. Reserved.



     SECTION 1008. Statement as to Compliance. The Company will deliver to the Trustee, within
120 days after the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his or her knowledge of
the Company’s compliance with all conditions and covenants under this Indenture and, in the event
of any noncompliance, specifying such noncompliance and the nature and status thereof. For
purposes of this Section 1008, such compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture.



     SECTION 1009. Waiver of Certain Covenants. The Company may omit in any particular instance
to comply with any term, provision or condition set forth in Sections 1004 to 1008, inclusive, if
before or after the time for such compliance the Holders of at least a majority in principal amount
of all outstanding Securities of such series, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full force and effect.



ARTICLE ELEVEN — REDEMPTION OF SECURITIES




     SECTION 1101. Applicability of Article. Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and



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(except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with
this Article.




     SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem
any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Securities of any series, the Company shall,
at least 45 days prior to the giving of the notice of redemption in Section 1104 (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.



     SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less than all the
Securities of any series issued on the same day with the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.



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



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



     SECTION 1104. Notice of Redemption. Notice of redemption shall be given in the manner
provided in Section 106, not less than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series established pursuant to Section
301, to each Holder of Securities to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.



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



     All notices of redemption shall state:



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     (1) the Redemption Date,




     (2) the Redemption Price, accrued interest to the Redemption Date payable as provided
in Section 1106, if any,




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




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




     (5) that on the Redemption Date the Redemption Price and accrued interest to the
Redemption Date payable as provided in Section 1106, if any, will become due and payable
upon each such Security, or the portion thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after said date,




     (6) the Place or Places of Payment where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion,




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




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




     (9) if Bearer Securities of any series are to be redeemed and any Registered Securities
of such series are not to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on this Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on which such exchanges may
be made,




     (10) the CUSIP number of such Security, if any, and




     (11) if applicable, that a Holder of Securities who desires to convert Securities for
redemption must satisfy the requirements for conversion contained in such Securities, the
then existing conversion price or rate, the place or places where such Securities may be
surrendered for conversion, and the date and time when the option to convert shall expire.



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



     SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is



64









 




acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301 for the Securities
of such series) sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.




     If any Securities called for redemption are converted, any money deposited with the Trustee or
with any Paying Agent or so segregated and held in trust for the redemption of such Security shall
be paid to the Company upon Company Request or, if then held by the Company, shall be discharged
from such trust.



     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 in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of such series) (together
with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for such interest; and
provided further that except as otherwise provided with respect to Securities
convertible into the Company’s Common Stock or Preferred Stock, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of
Section 307.



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



65









 




provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.




     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium or Make-Whole Amount, if any) shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.



     SECTION 1107. Securities Redeemed in Part. Any Registered Security which is to be redeemed
only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities of the same series, of any authorized denomination 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. If a Global Security is so surrendered,
the Company shall execute and the Trustee shall authenticate and deliver to the depository, without
service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered.



ARTICLE TWELVE — SINKING FUNDS




     SECTION 1201. Applicability of Article. The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of such Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such series.



     SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The Company may, in
satisfaction of all or any part of any mandatory sinking fund payment with respect to the
Securities of a series, (1) deliver Outstanding Securities of such series (other than any
previously called for redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, as provided for by the terms of such Securities, or which have otherwise
been acquired by the Company; provided that such Securities so delivered or applied as a
credit have not been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the applicable Redemption Price specified in such Securities



66









 




for redemption through operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.




     SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to
each sinking fund payment date for Securities of any series, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion thereof, if any, which is
to be satisfied by payment of cash in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so
delivered and credited. If such Officers’ Certificate shall specify an optional amount to be added
in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.



ARTICLE THIRTEEN — REPAYMENT AT THE OPTION OF HOLDERS




     SECTION 1301. Applicability of Article. 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, if any, and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.



     SECTION 1302. 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, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or prior to the Repayment Date it 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 in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.



     SECTION 1303. Exercise of Option. Securities of any series subject to repayment at the
option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of
such Securities. In order for any Security to be repaid at the option of the Holder, the Trustee
must receive at the Place of Payment therefor specified in the terms of such Security (or



67









 




at such other place or places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date (1) the
Security so providing for such repayment together with the “Option to Elect Repayment” form on the
reverse thereof duly completed by the Holder (or by the Holder’s attorney duly authorized in
writing) or (2) a telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the FINRA, or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number, if any, or a description of the
tenor and terms of the Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together with the duly completed form
entitled “Option to Elect Repayment” on the reverse of the Security, will be received by the
Trustee not later than the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed are received by the Trustee
by such fifth Business Day. 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 the minimum denomination for Securities of such series, 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 1304. 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 this Article and as provided by or pursuant to 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 specified, and on
and after such Repayment Date (unless the Company shall default in the payment of such Securities
on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any, appertaining
thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and provided further that, in the case
of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to
the Repayment Date shall be payable (but without interest thereon, unless the Company shall default
in the payment thereof) to the Holders of such Securities, or



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one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.




     If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant
coupons maturing after the Repayment Date, such Security may be paid after deducting from the
amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and surrender of those
coupons.



     If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.



     SECTION 1305. Securities Repaid in Part. Upon surrender of any Registered 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 Registered Security or Securities of the same series, 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 FOURTEEN — DEFEASANCE AND COVENANT DEFEASANCE




     SECTION 1401. Applicability of Article; Company’s Option to Effect Defeasance or Covenant
Defeasance. If, pursuant to Section 301, provision is made for either or both of (a)
Defeasance of the Securities of or within a series under Section 1402 or (b) Covenant Defeasance of
the Securities of or within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with respect to any Securities),
shall be applicable to such Securities and any coupons appertaining thereto, and the Company may at
its option by Board Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to such Outstanding Securities and any coupons appertaining thereto upon compliance with
the conditions set forth below in this Article.



     SECTION 1402. Defeasance and Discharge. Upon the Company’s exercise of the above option
applicable to this Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such



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Outstanding Securities and any coupons appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, “Defeasance”). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be deemed to be
“Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other obligations under
such Securities and any coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and
any coupons appertaining thereto to receive, solely from the trust fund described in Section 1404
and as more fully set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company’s obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003, and the Company’s obligations under Section 606 hereof (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this Article Fourteen, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.




     SECTION 1403. Covenant Defeasance. Upon the Company’s exercise of the above option
applicable to this Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 1004 to 1009, inclusive, and, if specified pursuant
to Section 301, its obligations under any other covenant contained herein or in any indenture
supplemental hereto, with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter,
“Covenant Defeasance”), and such Securities and any coupons appertaining thereto shall thereafter
be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with Sections 1004 to 1009,
inclusive, or such other covenant, but shall continue to be deemed “Outstanding” for all other
purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under Section 501(4) or
501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.



     SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The following shall be the
conditions to application of Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:



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     (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons appertaining thereto, (1) an amount in
such currency, currencies or currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2) Government Obligations applicable
to such Securities and coupons appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not later than the due
date of any payment of principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Securities and any coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons appertaining thereto.



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



     (c) No Event of Default or event which with notice or lapse of time or both would become an
Event of Default with respect to such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7)
are concerned, at any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the expiration of such
period).



     (d) In the case of an election under Section 1402, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any coupons appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such
Defeasance had not occurred.




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     (e) In the case of an election under Section 1403, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred.



     (f) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the Defeasance under Section 1402 or the
Covenant Defeasance under Section 1403 (as the case may be) have been complied with and an Opinion
of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company’s option under Section 1402 or Section 1403 (as the case
may be), registration is not required under the Investment Company Act of 1940, as amended, by the
Company, with respect to the trust funds representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act have been effected.



     (g) Notwithstanding any other provisions of this Section, such Defeasance or Covenant
Defeasance shall be effected in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith pursuant to Section 301.



     SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect
of any Outstanding Securities of any series and any coupons appertaining thereto shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities and any
coupons appertaining thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Securities and any coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium or Make-Whole Amount, if any) and interest,
but such money need not be segregated from other funds except to the extent required by law.



     Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a
deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the currency or currency unit in which the deposit pursuant to Section
1404(a) has been made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium or Make-Whole Amount, if any), and interest, if any, on
such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such election) the amount
or



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other property deposited in respect of such Security into the currency or currency unit in which
such Security becomes payable as a result of such election or Conversion Event based on the
applicable market exchange rate for such currency or currency unit in effect on the second Business
Day prior to each payment date, except, with respect to a Conversion Event, for such currency or
currency unit in effect (as nearly as feasible) at the time of the Conversion Event.




     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 1404 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 such Outstanding Securities and any coupons
appertaining thereto.



     Anything in this Article to the contrary notwithstanding, subject to Section 606, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds there from) held by it as provided in Section 1404
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 required to be deposited to effect a Defeasance or Covenant Defeasance, as
applicable, in accordance with this Article.



     SECTION 1406. Reinstatement. If the Trustee or the Paying Agent is unable to apply
any money in accordance with this Article Fourteen with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 1402 or 1403 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article Fourteen with respect to
such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1405 with respect to such Securities in accordance with this
Article Fourteen; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.



ARTICLE FIFTEEN — MEETINGS OF HOLDERS OF SECURITIES




     SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of Holders of
Securities of any series may be called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders of Securities of such
series.



     SECTION 1502. Call, Notice and Place of Meetings.



          (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken



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at such meeting,
shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days
prior to the date fixed for the meeting.





          (b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 25% in principal amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have made the first publication of the notice of such
meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may determine the time and the place for such
meeting and may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.



     SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting
of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of the Company and its
counsel.



     SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the reconvening of any
such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less
than 10 days; at the reconvening of any meeting adjourned or further adjourned for lack of a
quorum, the Persons entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities shall constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than five days prior to
the date on which the meeting is scheduled to be reconvened.



     Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting; provided, however, that, except
as



74









 




limited by the proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.




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



     Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at
a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or of the Holders of such series and one or more
additional series:




     (i) there shall be no minimum quorum requirement for such meeting; and




     (ii) the principal amount of the Outstanding Securities of such series that
vote in favor of such request, demand, authorization, direction, notice, consent,
waiver or other action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or other action
has been made, given or taken under this Indenture.



     SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.



          (a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard
to proof of the holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the proof specified
in Section 104 or other proof.



          (b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of Securities as
provided in Section 1502(b), in which case the Company or the Holders



75









 




of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of such series
represented at the meeting.




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



          (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at
which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.



     SECTION 1506. Counting Votes and Recording Action of Meetings. The vote upon any
resolution submitted to any meeting of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the Holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy
shall be signed and verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.



ARTICLE SIXTEEN — SUBORDINATION OF SECURITIES




     SECTION 1601. Agreement to Subordinate. Notwithstanding anything in this Indenture to the
contrary (other than Article Four of this Indenture), the Company covenants and agrees, and each
Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the Indebtedness represented by the
Securities and the payment of any Obligations with respect to each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.



     SECTION 1602. Payment Over of Proceeds upon Dissolution, Etc. In the event of (a) any
insolvency or bankruptcy case or Proceeding, or any receivership, liquidation,



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reorganization or
other similar case or Proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of
the Company, whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other marshaling of assets
and liabilities of the Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a “Proceeding”)





          (1) the holders of Senior Indebtedness shall first be entitled to receive payment in
full of all Obligations due or to become due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness, before the Holders of the
Securities are entitled to receive any payment or distribution on account of principal of or
premium, if any, or interest on or other Obligations in respect of the Securities or on
account of any purchase, redemption or other acquisition of Securities by the Company or any
Subsidiary (individually and collectively, a “Securities Payment”), and




          (2) any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Capital Stock or securities of the
Company as reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this Article Sixteen with respect to the
Securities, to the payment in full, without diminution or modification by such plan, of all
Senior Indebtedness), to which the Holders would be entitled except for the provisions of
this Article Sixteen, shall be paid by the liquidating trustee or agent or other person
making such a payment or distribution, directly to the holders of Senior Indebtedness) (or
their representative(s) or trustee(s) acting on their behalf), ratably according to the
aggregate amounts remaining unpaid on account of the principal of or interest on and other
amounts due on the Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such Senior Indebtedness.



     In the event that, notwithstanding the foregoing provisions of this Section 1602, the Trustee
or the Holder of any Security shall have received any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities (other than
Capital Stock or securities of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinate, at least to the extent provided in this Article with respect to
the Securities, to the payment in full, without diminution or modification by such plan, of Senior
Indebtedness), before all Senior Indebtedness is paid in full or payment thereof provided for in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, such payment or distribution shall be held in trust for the benefit of, and be paid
over to, the holders of the Senior Indebtedness remaining unpaid (or their representative(s) or
trustee(s) acting on their behalf), ratably as aforesaid, for application to the payment of such
Senior Indebtedness until such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.



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     The consolidation of the Company with, or the merger of the Company into, another Person or
the liquidation or dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the purposes of this
Section 1602 if the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer such properties and assets as an entirety, as the
case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article Eight.



     SECTION 1603. No Payment When Senior Indebtedness in Default. Anything in this Indenture
to the contrary notwithstanding, no payment on account of principal of or redemption of, interest
on or other amounts due on the Securities, and no redemption, purchase, or other acquisition of the
Securities, shall be made by or on behalf of the Company (i) unless full payment of amounts then
due for principal and interest and of all other obligations then due on all Senior Indebtedness has
been made or duly provided for pursuant to the terms of the instrument governing such Senior
Indebtedness, (ii) if, at the time of such payment, redemption, purchase or other acquisition, or
immediately after giving effect thereto, there shall exist under any Senior Indebtedness, or any
agreement pursuant to which any Senior Indebtedness is issued, any default, which default shall not
have been cured or waived and which default shall have resulted in the full amount of such Senior
Indebtedness being declared due and payable or (iii) if, at the time of such payment, redemption,
purchase or other acquisition, the Trustee shall have received written notice from the holder or
holders of any Senior Indebtedness or their representative or representatives (a “Payment Blockage
Notice”) that there exists under such Senior Indebtedness, or any agreement pursuant to which such
Senior Indebtedness is issued, any default, which default shall not have been cured or waived,
permitting the holders thereof to declare the full amount of such Senior Indebtedness due and
payable, but only for the period (the “Payment Blockage Period”) commencing on the date of receipt
of the Payment Blockage Notice and ending (unless earlier terminated by notice given to the Trustee
by the Holders of such Senior Indebtedness) on the earlier of (A) the date on which such event of
default shall have been cured or waived or (B) 180 days from the receipt of the Payment Blockage
Notice. Upon termination of a Payment Blockage Period, payments on account of principal of or
interest on the Securities and redemptions, purchases or other acquisitions may be made by or on
behalf of the Company. Notwithstanding anything herein to the contrary, (A)
only one Payment Blockage Notice may be given during any period of 360 consecutive days with
respect to the same event of default and any other events of default on the same issue of Senior
Indebtedness existing and known to the person giving such notice at the time of such notice and (B)
no new Payment Blockage Period may be commenced by the holder or holders of the same issue of
Senior Indebtedness or their representative or representatives during any period of 360 consecutive
days unless all events of default which were the object of the immediately preceding Payment
Blockage Notice, and any other event of default on the same issue of Senior Indebtedness existing
and known to the person giving such notice at the time of such notice, have been cured or waived.



     In the event that, notwithstanding the provisions of this Section 1603, payments are made by
or on behalf of the Company in contravention of the provisions of this Section 1603, such payments
shall be held by the Trustee, any Paying Agent or the Holders, as applicable, in trust for the
benefit of, and shall be paid over to and delivered to, the holders of Senior Indebtedness



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or their
representative or the trustee under the indenture or other agreement (if any), pursuant to which
any instruments evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.




     The provisions of this Section shall not apply to any payment with respect to which Section
1602 would be applicable.



     SECTION 1604. Reliance by Senior Indebtedness on Subordination Provisions. Each Holder of
any Security by his acceptance thereof acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration for each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness, and such holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold or in continuing to hold such
Senior Indebtedness.



     SECTION 1605. Subrogation to Rights of Holders of Senior Indebtedness. Subject to the
payment in full of all Obligations due or to become due on or in respect of Senior Indebtedness, or
the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Sixteen to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of and premium, if any, and interest on the Securities shall be
paid in full. For purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article Sixteen, and no payments
over pursuant to the provisions of this Article Sixteen to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.



     SECTION 1606. Provisions Solely to Define Relative Rights. The provisions of this
Article Sixteen are and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional (and which, subject to the rights under this Article Sixteen of the holders of
Senior Indebtedness, is intended to rank equally with all other general obligations of the
Company), to pay to the Holders of the Securities the principal of and premium, if any, and
interest on the Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the Holders of the Securities



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and creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.




     SECTION 1607. Trustee to Effectuate Subordination. Each Holder of a Security by his
acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate, as between the Holders of the Securities and the holders of
Senior Indebtedness, the subordination provided in this Article Sixteen and appoints the Trustee
his attorney-in-fact for any and all such purposes, including, in the event of any dissolution,
winding up or liquidation or reorganization under any applicable bankruptcy law of the Company
(whether in bankruptcy, insolvency or receivership Proceedings or otherwise), the timely filing of
a claim for the unpaid balance of such Holder’s Securities in the form required in such Proceedings
and the causing of such claim to be approved. If the Trustee does not file a claim or proof of
debt in the form required in such Proceedings prior to 30 days before the expiration of the time to
file such claims or proofs, then the holders of Senior Indebtedness, jointly, or their
representatives shall have the right to file an appropriate claim for and on behalf of the Holders
and to demand, sue for, collect, receive and receipt for the payments and distributions in respect
of the Securities which are required to be paid or delivered to the holders of Senior Indebtedness
as provided in this Article Sixteen and to take all such other action in the name of the Holders or
otherwise, as such holder of Senior Indebtedness or representative thereof may determine to be
necessary or appropriate for the enforcement of the provisions of this Article Sixteen.



     SECTION 1608. No Waiver of Subordination Provisions. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder or any representative or trustee therefor,
or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may
have or be otherwise charged with.



     Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness may, at any time from time to time, without the consent of or notice to the Trustee or
the Holders of the Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article Sixteen or the
obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of Senior Indebtedness and settle or compromise Senior
Indebtedness (which, to the extent so settled and compromised, shall be deemed to have been paid in
full for all purposes hereof); (iv) apply any amounts received to any



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liability of the Company
owing to holders of Senior Indebtedness; and (v) exercise or refrain from exercising any rights
against the Company and any other Person.




     SECTION 1609. Notice to Trustee. The Company shall give prompt written notice to the
Trustee of any default or event of default with respect to any Senior Indebtedness or of any fact
known to the Company which would prohibit the making of any payment to or by the Trustee in respect
of the Securities pursuant to the provisions of this Article Sixteen. Notwithstanding the
provisions of this Article Sixteen or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have
received written notice thereof from the Company or a holder of Senior Indebtedness or from any
representative or trustee acting on their behalf; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 612, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of and premium, if any, or interest on any
Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice to the contrary which may be received by
it within three Business Days prior to such date. Nothing contained in this Article Sixteen or any
other Article of this Indenture or in any of the Securities shall prevent (a) the Company, at any
time except during the pendency of any Proceeding, or under the conditions described in
Section 1603, from making payments at any time in respect of the Securities, or (b) the application
by the Trustee of any money deposited with it hereunder to the payment of or on account of the
Securities, or the retention thereof by any Holder, if the Trustee did not have notice, as provided
in this Section 1609, that such payment would have been prohibited by the provisions of this
Article Sixteen.



     Subject to the provisions of Section 612, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a representative or trustee therefor) to establish that such notice has been given
by a holder of Senior Indebtedness (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Sixteen, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.



     SECTION 1610. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any
payment or distribution of assets of the Company referred to in this Article Sixteen, the Trustee,
subject to the provisions of Section 612, and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in which any
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating



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trustee, custodian, assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose
of ascertaining the Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.




     SECTION 1611. Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. Nothing contained
in this Article Sixteen or elsewhere in this Indenture, or in any of the Securities, shall prevent
the application by the Trustee of any moneys which were deposited with it hereunder, prior to its
receipt of written notice of facts which would prohibit such application, for the purpose of the
payment of or on account of the principal of or interest on, the Securities unless, prior to the
date on which such application is made by the Trustee, the Trustee shall be charged with notice
under Section 1609 hereof of the facts which would prohibit the making of such application.



     SECTION 1612. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s
Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article Sixteen with respect to any Senior Indebtedness which may at any time be held by
it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this Article shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 606.



     SECTION 1613. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article Sixteen shall in
such case (unless the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided, however,
that Section 1612 shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.



ARTICLE SEVENTEEN — CONVERSION OF SECURITIES




     SECTION 1701. Applicability of Article; Conversion Privilege and Conversion Price.
Securities of any series which are convertible shall be convertible in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article Seventeen. Subject to and upon compliance with the provisions of this
Article Seventeen, at any time during the period specified in the Securities, at the option of the
Holder thereof, any Security or any portion of the principal amount thereof which is $1,000 or an
integral multiple of $1,000 may be converted at the principal amount thereof, or of such portion
thereof, into fully paid and nonassessable shares (calculated as to each conversion to the nearest
1/100 of a share) of Common Stock of the Company, at the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. In case a Security or portion thereof
is called for redemption, such conversion right in respect of the Security or portion so called
shall expire at the close of business on the Business Day immediately preceding



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the Redemption
Date, unless the Company defaults in making the payment due upon redemption, in which case such
conversion right shall terminate on the date such default is cured.



     The price at which shares of Common Stock shall be delivered upon conversion (herein called
the “Conversion Price”) of Securities of any series shall be specified in such Securities. The
Conversion Price shall be adjusted in certain instances as provided in Section 1704.



     In case the Company shall, by dividend or otherwise, declare or make a distribution on its
Common Stock referred to in paragraph (4) of Section 1704, the Holder of each Security, upon the
conversion thereof pursuant to this Article Seventeen subsequent to the close of business on the
date fixed for the determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the Conversion Price adjustment in respect of such distribution pursuant to
paragraph (4) of Section 1704, shall be entitled to receive for each share of Common Stock into
which such Security is converted, the portion of the evidence of indebtedness, shares of Capital
Stock or assets so distributed applicable to one share of Common Stock; provided,
however, that, at the election of the Company (whose election shall be evidenced by a Board
Resolution filed with the Trustee) with respect to all Holders so converting, the Company may, in
lieu of distributing to such Holder any portion of such distribution not consisting of cash or
securities of the Company, pay such Holder an amount in cash equal to the fair market value thereof
(as determined in good faith by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Trustee). If any conversion of a Security entitled
to the benefits described in the immediately preceding sentence occurs prior to the payment date
for a distribution to holders of Common Stock which the Holder of the Security so converted is
entitled to receive in accordance with the immediately preceding sentence, the Company may
elect (such election to be evidenced by a Board Resolution filed with the Trustee) to distribute to
such Holder a due bill for the evidences of indebtedness, shares of Capital Stock or assets to
which such Holder is so entitled, provided that such due bill (i) meets any applicable requirements
of the principal over-the-counter market or national securities exchange or other market on which
the Common Stock is then traded, and (ii) requires payment or delivery of such evidences of
indebtedness or assets no later than the date of payment or delivery thereof to holders of Common
Stock receiving such distribution.



     SECTION 1702. Exercise of Conversion Privilege. In order to exercise the conversion
privilege, the Holder of any Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank, at any office or agency maintained by the Company pursuant
to Section 1002, accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted and shall comply with any additional requirements
set forth in such Security. Securities surrendered for conversion during the period from the close
of business on any Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except for Securities the Maturity of which is prior
to such Interest Payment Date) be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the principal amount of
Securities being surrendered for conversion and such interest shall be paid on such Interest
Payment Date as provided in Section 307. Except as provided in the preceding sentence, no payment
or adjustment shall be made upon any



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conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the Common Stock issued
upon conversion.




     The Company’s delivery to the Holder of the fixed number of shares of the Common Stock of the
Company (and any cash in lieu of any fractional share of Common Stock) into which the Security is
convertible shall be deemed to satisfy the Company’s obligation to pay the principal amount of the
Security and all accrued interest and original issue discount that has not previously been paid.
The shares of Common Stock of the Company so delivered shall be treated as issued first in payment
of accrued interest and original issue discount and then in payment of principal. Thus, accrued
interest and original issue discount shall be treated as paid, rather than canceled, extinguished
or forfeited.



     Securities shall be deemed to have been converted immediately prior to the close of business
on the day of surrender of such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such Securities as Holders shall cease,
and the Person or Persons entitled to receive the Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the Company shall issue and shall deliver
at such office or agency a certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1703.



     In the case of any Security which is converted in part only, as promptly as practicable on or
after the conversion date the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof (or the Depositary in the case of a Global Security),
at the expense of the Company, a new Security or Securities, of authorized denominations in
aggregate principal amount equal to the unconverted portion of the principal amount of such
Security.



     SECTION 1703. Fractions of Shares. No fractional shares of Common Stock shall be issued
upon conversion of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Common Stock which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (rounded to the nearest cent)
in respect of such fraction in an amount equal to the same fraction of the Closing Price per share
of the Common Stock on the day of conversion (or, if such day is not a Trading Day, on the Trading
Day immediately preceding such day).



     SECTION 1704. Adjustment of Conversion Price. The Conversion Price shall be subject to
adjustment from time to time as follows:




     (1) If the Company pays or makes a dividend or other distribution (a) on its Common
Stock exclusively in Common Stock or (b) on any other class of Capital Stock of the Company,
which dividend or distribution includes Common Stock of the Company, the Conversion Price in
effect at the opening of business on the day following



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the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution (the “Dividend
Record Date”) shall be reduced by multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common Stock of the Company outstanding at
the close of business on the Dividend Record Date and the denominator shall be the sum of
such number of shares and the total number of shares constituting such dividend or other
distribution. Such reduction shall become effective immediately after the opening of
business on the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock of the Company at any time
outstanding shall not include shares held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company shall not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.




     (2) Subject to paragraph (6) of this Section, if the Company pays or makes a dividend
or other distribution on its Common Stock consisting exclusively of Short Term Rights (as
defined below), or otherwise issues Short Term Rights to all holders of its Common Stock,
the Conversion Price in effect at the opening of business on the day following the record
date for the determination of holders of Common Stock entitled to receive such Short Term
Rights (the “Rights Record Date”) shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator shall be the
number of shares of Common Stock of the Company outstanding at the close of business on the
Rights Record Date plus the number of shares of Common Stock of the Company which the
aggregate of the offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price and the denominator
shall be the number of shares of Common Stock of the Company outstanding at the close of
business on the Rights Record Date plus the number of shares of Common Stock so offered for
subscription or purchase. Such reduction shall become effective immediately after the
opening of
business on the day following the Rights Record Date. For the purposes of this
paragraph (2), the number of shares of Common Stock of the Company at any time outstanding
shall not include shares held in the treasury of the Company, but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common
Stock of the Company. The Company shall not issue any rights, options or warrants in
respect of shares of its Common Stock held in the treasury of the Company. When used in
this Section 1704, the term “Short Term Rights” shall mean rights, warrants or options
entitling the holders thereof (for a period commencing no earlier than the Rights Record
Date and expiring not more than 45 days after the Rights Record Date) to subscribe for or
purchase shares of Common Stock of the Company at a price per share less than the current
market price per share (determined as provided in paragraph (7) of this Section 1704) of the
Common Stock of the Company on the Rights Record Date.




     (3) In case outstanding shares of Common Stock of the Company shall be subdivided into
a greater number of shares of Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares of Common Stock, the Conversion
Price in effect at the opening of



85









 






business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening of business
on the day following the day upon which such subdivision or combination becomes effective.




     (4) Subject to the last sentence of this paragraph (4) of this Section, if the Company,
by dividend or otherwise, (a) distributes to all holders of its Common Stock evidences of
its indebtedness, shares of any class of Capital Stock of the Company or other assets (other
than cash dividends out of current or retained earnings), or (b) distributes to
substantially all holders of Common Stock rights or warrants to subscribe for securities
(other than Short Term Rights to which paragraph (2) of this Section 1704 applies), the
Conversion Price shall be reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the current market price per share (determined as provided in
paragraph (7) of this Section 1704) of the Common Stock of the Company on the Reference Date
(as defined below) less the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board Resolution filed
with the Trustee), on the Reference Date, of the portion of the evidences of indebtedness
and other assets so distributed or of such subscription rights or warrants applicable to one
share of Common Stock (collectively, the “Market Value of the Distribution”) and the
denominator shall be
such current market price per share of the Common Stock of the Company. Such reduction
shall become effective immediately prior to the opening of business on the day (the
“Reference Date”) following the later of (a) the date fixed for the payment of such
distribution and (b) the date 20 days after notice relating to such distribution is required
to be given pursuant to Section 1706(a). If the Board of Directors determines the fair
market value of any distribution for purposes of this paragraph (4) by reference to the
actual or when issued trading market for any securities comprising such distribution, it
must in doing so consider the prices in such market over the same period used in computing
the current market price per share pursuant to paragraph (7) of this Section 1704. In the
event that, with respect to any distribution to which this paragraph (4) of Section 1704
would otherwise apply, the Market Value of the Distribution is greater than the current
market price per share of the Common Stock (such distribution being referred to herein as an
“Unadjusted Distribution”), then the adjustment provided by this paragraph (4) shall not be
made and in lieu thereof the provisions of Section 1711 shall apply with respect to such
Unadjusted Distribution.




     (5) The Company may, but shall not be required to, make such reductions in the
Conversion Price, in addition to those required by paragraphs (1), (2), (3), and (4) of
this Section 1704, as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights shall not be taxable to
the recipients. In addition, the Company, from time to time, may decrease the Conversion
Price by any amount and for any reason, temporarily or otherwise, including situations where
the Board of Directors determines such decrease to be fair and appropriate with respect to
transactions in which holders of Common Stock have the right to participate.




     (6) Rights or warrants issued or distributed by the Company to all holders of its
Common Stock entitling the holders thereof to subscribe for or purchase shares of




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Common Stock or Preferred Stock, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also
issued or distributed in respect of future issuances of Common Stock, in each case in
clauses (i) through (iii) until the occurrence of a specified event or events (“Trigger
Events”), shall for purposes of this Section 1704 not be deemed issued or distributed until
the occurrence of the earliest Trigger Event. Each share of Common Stock issued upon
conversion of Securities pursuant to this Article Seventeen shall be entitled to receive the
appropriate number of Common Stock purchase rights (the “Rights”), if any, and the
certificates representing the Common Stock issued upon conversion shall bear such legends,
if any. Notwithstanding anything to the contrary in this Article Seventeen, there shall not
be any adjustment to the Conversion Price as a result of (i) the distribution of separate
certificates representing the Rights; (ii) the occurrence of certain events entitling
holders of Rights to receive, upon exercise thereof, Common Stock or other securities of the
Company or other securities of another corporation; or (iii) the exercise of such Rights.
No adjustment in the Conversion Price need be made for rights to purchase or the sale of
Common Stock pursuant to a Company plan providing for reinvestment of dividends or interest.




     (7) For the purpose of any computation under paragraph (2), (4) or (5) of this Section
1704, the “current market price” per share of Common Stock of the Company on any date shall
be deemed to be the average of the daily Closing Prices for the 15 consecutive Trading Days
selected by the Company commencing not more than 30 Trading Days before, and ending not
later than, the date in question.




     (8) No adjustment in the Conversion Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Conversion Price;
provided, however, that any adjustments which by reason of this paragraph
(8) are not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article Seventeen shall be made to the
nearest cent or to the nearest one-hundredth of a share of Common Stock, as the case may be.




     (9) Anything herein to the contrary notwithstanding, in the event the Company shall
declare any dividend or distribution requiring an adjustment in the Conversion Price
hereunder and shall, thereafter and before the payment of such dividend or distribution to
stockholders, legally abandon its plan to pay such dividend or distribution, the Conversion
Price then in effect hereunder, if changed to reflect such dividend or distribution, shall
upon the legal abandonment of such plan be changed to the Conversion Price which would have
been in effect at the time of such abandonment (after giving effect to all other adjustments
not so legally abandoned pursuant to the provisions of this Article Seventeen) had such
dividend or distribution never been declared.




     (10) Notwithstanding any other provision of this Section 1704, no adjustment to the
Conversion Price shall reduce the Conversion Price below the then par value per share of the
Common Stock of the Company, and any such purported adjustment shall instead reduce the
Conversion Price to such par value. Notwithstanding the foregoing sentence, the Company
hereby covenants that it will from time to time take all such action as may be required to
assure that the par value per share of the Common Stock is at all times equal to or less
than the Conversion Price.



87









 






     (11) In the event that this Article Seventeen requires adjustments to the Conversion
Price under more than one of paragraphs (1), (2), (3) or (4) of this Section 1704, and the
record or effective dates for the transaction giving rise to such adjustments shall occur on
the same date, then such adjustments shall be made by applying (to the extent they are
applicable), first, the provisions of paragraph (3) of this Section 1704, second, the
provisions of paragraph (1) of this Section 1704, third, the provisions of paragraph (4) of
this Section 1704 and, fourth, the provisions of paragraph (2) of this Section 1704.
Anything herein to the contrary notwithstanding, no single event shall require or result in
duplicative adjustments in the Conversion Price pursuant to this Section 1704. After an
adjustment to the Conversion Price under this Article Seventeen, any subsequent event
requiring an adjustment under this Article Seventeen shall cause an adjustment to the
Conversion Price as so adjusted. If, after an adjustment, a Holder of a Security upon
conversion of such Security receives shares of two or more classes of Capital Stock of the
Company, the Conversion Price shall thereafter be subject to adjustment upon the occurrence
of an action taken with respect to any such class of Capital Stock as is contemplated by
this Article Seventeen with respect to the Common Stock in this Article Seventeen.



     SECTION 1705. Notice of Adjustments of Conversion Price. Whenever the Conversion Price is
adjusted as herein provided:




     (1) the Company shall compute the adjusted Conversion Price in accordance with Section
1704 or Section 1711 and shall prepare an Officer’s Certificate setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed (with a copy to the Trustee) at each
office or agency maintained for the purpose of conversion of any Securities pursuant to
Section 1002; and




     (2) a notice stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall forthwith be required, and as soon as practicable after it
is required, such notice shall be mailed by the Company to all Holders at their last
addresses as they shall appear in the Security Register.




SECTION 1706. Notice of Certain Corporate Action. In case:




     (1) the Company shall take any action that would require a Conversion Price adjustment
pursuant to Section 1704 or Section 1711; or




     (2) there shall occur any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common Stock), or any
consolidation or merger to which the Company is a party, or the sale, transfer or lease of
all or substantially all of the assets of the Company and for which approval of any
stockholders of the Company is required; or




     (3) there shall occur the voluntary or involuntary dissolution, liquidation or winding
up of the Company, then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear in
the Security Register, at least 10 days prior to the applicable record, effective or



88









 






expiration date hereinafter specified, a notice stating (x) the date on which a record is to
be taken for the purpose of any dividend, distribution or granting of rights, warrants or
options, or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, rights, options or warrants
are to be determined, or (y) the date on which such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up is expected to become effective, and,
if applicable, the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.



     SECTION 1707. Company to Reserve Common Stock. The Company shall at all times reserve and
keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for
the purpose of effecting the conversion of Securities, a number of shares of Common Stock for the
conversion of all outstanding Securities of any series which is convertible into Common Stock.



     SECTION 1708. Taxes on Conversion. The Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such issue has paid to the Company
the amount of any such tax, or has established to the satisfaction of the Company that such tax has
been paid.



     SECTION 1709. Covenants as to Common Stock. The Company covenants that all shares of
Common Stock which may be issued upon conversion of Securities will upon issue be duly and validly
issued, fully paid and nonassessable, free of preemptive or any similar rights, and, except as
provided in Section 1708, the Company will pay all taxes, liens and charges with respect to the
issue thereof.



     The Company will endeavor promptly to comply with all Federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any,
and will list or cause to have quoted such shares of Common Stock on each national securities
exchange or in the over-the-counter market or such other market on which the Common Stock is then
listed or quoted.



     SECTION 1710. Cancellation of Converted Securities. All Securities delivered for
conversion shall be delivered to the Trustee to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 309.



     SECTION 1711. Provisions in Case of Consolidation, Merger or Sale of Assets; Special
Distributions. If any of the following shall occur, namely: (i) any reclassification or change of outstanding
shares of Common Stock issuable upon conversion of Securities (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation or merger to which the Company is a party other than a
merger in which the Company is the continuing corporation and



89









 




which does not result in any
reclassification of, or change (other than a change in name, or par value, or from par value to no
par value, or from no par value to par value or as a result of a subdivision or combination) in,
outstanding shares of Common Stock or (iii) any sale or conveyance of all or substantially all of
the property or business of the Company as an entirety, then the Person formed by such
consolidation or resulting from such merger or which acquires such properties or assets, as the
case may be, shall as a condition precedent to such transaction execute and deliver to the Trustee
a supplemental indenture providing that the Holder of each Security then outstanding shall have the
right thereafter, during the period such Security shall be convertible as specified in Section
1701, to convert such Security only into the kind and amount of securities, cash and other property
receivable, if any, upon such consolidation, merger, sale, transfer or lease by a holder of the
number of shares of Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale, transfer or lease; provided that the kind
and amount of securities, cash and other property so receivable shall be determined on the basis of
the following assumptions. The holder of Common Stock referred to in the foregoing sentence:





     (1) is not (a) a Person with which the Company consolidated, (b) a Person into which
the Company merged or which merged into the Company, or (c) a Person to which such sale,
transfer or lease was made (any Person described in the foregoing clauses (a), (b), or (c),
hereinafter referred to as a “Constituent Person”), or (d) an Affiliate of a Constituent
Person; and




     (2) failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger, sale,
transfer or lease (provided that if the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale transfer or lease is not the same
for each share of Common Stock of the Company in respect of which such rights of election
shall not have been exercised, then for the purpose of this Section 1711 the kind and amount
of securities, cash and other property receivable upon such consolidation, merger, sale,
transfer or lease shall be deemed to be the kind and amount so receivable per share by a
plurality of such shares of Common Stock).



     Such supplemental indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article Seventeen. If, in the case of any such
consolidation, merger, sale transfer or lease the stock or other securities and property (including
cash) receivable thereupon by a holder of Common Stock includes shares of stock or other securities
and property of a corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale, transfer or lease then such supplemental indenture shall
also be executed by such other corporation and shall contain such additional provisions to protect
the interests of the Holders of the Securities as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing. The above provisions
of this Section 1711 shall similarly apply to successive consolidations, mergers, sales,
transfers or leases.



     In the event the Company shall execute a supplemental indenture pursuant to this Section 1711,
the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities or property



90









 




(including cash)
receivable by Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale, transfer or lease and any adjustment to be
made with respect thereto.




     If the Company makes a distribution to all holders of its Common Stock that constitutes an
Unadjusted Distribution pursuant to the last sentence of paragraph (4) of Section 1704, then, from
and after the record date for determining the holders of Common Stock entitled to receive such
distribution (the “Distribution Record Date”), a Holder of a Security who converts such Security in
accordance with the provisions of this Indenture shall, upon conversion, be entitled to receive, in
addition to the shares of Common Stock into which the Security is convertible, the kind and amount
of evidences of indebtedness, shares of Capital Stock, or other assets or subscription rights or
warrants, as the case may be, comprising the distribution that such Holder would have received if
such Holder had converted the Security immediately prior to the Distribution Record Date.



     SECTION 1712. Trustee Adjustment Disclaimer; Company Determination Final. The Trustee has
no duty to determine when an adjustment under this Article Seventeen should be made, how it should
be made or what it should be. The Trustee has no duty to determine whether a supplemental
indenture under Section 1711 need be entered into or whether any provisions of any supplemental
indenture are correct. The Trustee shall not be accountable for and makes no representation as to
the validity or value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company’s failure to comply with this Article Seventeen.
Any determination that the Company or the Board of Directors must make pursuant to this Article
Seventeen is conclusive, absent manifest error.



     SECTION 1713. When No Adjustment Required. Except as expressly set forth in Section 1704,
no adjustment in the Conversion Price shall be made because the Company issues, in exchange for
cash, property or services, shares of its Common Stock, or any securities convertible into or
exchangeable for shares of its Common Stock, or securities (including warrants, rights and options)
carrying the right to subscribe for or purchase shares of its Common Stock or such convertible or
exchangeable securities.




     (1) Notwithstanding anything herein to the contrary, no adjustment in the Conversion
Price shall be made pursuant to Section 1704 in respect of any dividend or distribution if
the Holders may participate therein (on a basis to be determined in good faith by the Board
of Directors) and receive the same consideration they would have received if they had
converted the Securities immediately prior to the record date with respect to such dividend
or distribution.



     SECTION 1714. Equivalent Adjustments. In the event that, as a result of an adjustment made pursuant to Section 1704 above, the holder
of any Security thereafter surrendered for conversion shall become entitled to receive any shares
of Capital Stock of the Company other than shares of its Common Stock, thereafter the Conversion
Price of such other shares so receivable upon conversion of any Securities shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Article Seventeen.



91









 





SIGNATURES




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



	 	 	 	 	 
	 	 	AVANIR PHARMACEUTICALS, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	 	,
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






92









 






EXHIBIT A




FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED SECURITY




[Face of Security]



[If the Holder of this Security (as indicated below) is The Depository Trust Company (“DTC”) or a
nominee of DTC, this Security is a Global Security and the following two legends apply:



Unless this Security is presented by an authorized representative of The Depository Trust Company a
New York corporation (“DTC”) to the Company or its agent for registration of transfer, conversion,
exchange or payment, and such Security issued is registered in the name of Cede & Co., or in such
other name as requested by an authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.



Unless and until this Security is exchanged in whole or in part for Securities in certificated
form, this Security may not be transferred except as a whole by DTC to a nominee thereof or by a
nominee thereof to DTC or another nominee of DTC or by DTC or any such nominee to a successor of
DTC or a nominee of such successor.]



[If this Security is an Original Issue Discount Security, insert — FOR PURPOSES OF SECTION
1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON
THIS SECURITY IS ___% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS                      ___, 20___, AND THE YIELD
TO MATURITY IS ___%. THE METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE
TO THE SHORT ACCRUAL PERIOD OF                      ___, 20___TO                      ___, 20___, IS ___% OF THE PRINCIPAL
AMOUNT OF THIS SECURITY.]




AVANIR PHARMACEUTICALS, INC.




[Designation of Series]




	 	 	 
	No.                     

	 	$                    






CUSIP No.                     



AVANIR PHARMACEUTICALS, INC., a Delaware corporation (herein referred to as the “Company,” which
term includes any successor corporation under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to                      or registered assigns the principal sum of
                     Dollars on                      (the “Stated Maturity Date”) [or insert date fixed for
earlier redemption (the “Redemption Date,” and together with the Stated Maturity Date with
respect to principal repayable on such date, the “Maturity Date.”)]



[If the Security is to bear interest prior to Maturity, insert — and to pay interest
thereon from                      or from the most recent Interest Payment Date to which interest has been
paid or



A-1









 






duly provided for, semi-annually on                      and                      in each year (each, an “Interest
Payment Date”), commencing                     , at the rate of ___% per annum, until the principal hereof is
paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the Holder in whose name
this Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the                      or                      (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date [at the office or
agency of the Company maintained for such purpose; provided, however, that such
interest may be paid, at the Company’s option, by mailing a check to such Holder at its registered
address or by transfer of funds to an account maintained by such Holder within the United States].
Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Holder in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with
the requirements of any over-the-counter market or securities exchange on which the Securities of
this series may be quoted or listed, and upon such notice as may be required by such market or
exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a
360-day year of twelve 30-day months.]



[If the Security is not to bear interest prior to Maturity, insert — The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at the [Stated] Maturity Date and in such case the overdue
principal of this Security shall bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest shall be legally enforceable), which shall accrue from the
date of such demand for payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]



The principal of this Security payable on the Stated Maturity Date [or the principal of, premium or
Make-Whole Amount, if any, and, if the Redemption Date is not an Interest Payment Date, interest on
this Security payable on the Redemption Date] will be paid against presentation of this Security at
the office or agency of the Company maintained for that purpose in                     , in such coin or
currency of the United States of America as at the time of payment is legal tender for the payment
of public and private debts.



Interest payable on this Security on any Interest Payment Date and on the [Stated] Maturity Date
[or Redemption Date, as the case may be,] will include interest accrued from and including the next
preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or
from and including                     , if no interest has been paid on this Security) to but excluding
such Interest Payment Date or the [Stated] Maturity Date [or Redemption Date, as the case may be.]
If any Interest Payment Date or the [Stated] Maturity Date or [Redemption Date] falls on a day that
is not a Business Day, as defined below, principal, premium or Make-Whole



A-2









 






Amount, if any, and/or interest payable with respect to such Interest Payment Date or [Stated]
Maturity Date [or Redemption Date, as the case may be,] will be paid on the next succeeding
Business Day with the same force and effect as if it were paid on the date such payment was due,
and no interest shall accrue on the amount so payable for the period from and after such Interest
Payment Date or [Stated] Maturity Date [or Redemption Date, as the case may be.] “Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions in The City of New York are required or authorized by law, regulation or
executive order to close.



[If this Security is a Global Security, insert — All payments of principal, premium or
Make-Whole Amount, if any, and interest in respect of this Security will be made by the Company in
immediately available funds.]



Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



Unless the Certificate of Authentication hereon has been executed by the Trustee by manual
signature of one of its authorized signatories, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.



IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its facsimile
corporate seal.




Dated:                     




	 	 	 	 	 
	 	AVANIR PHARMACEUTICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 
	Attest:
	 	 
	 
	 	 
	 

Secretary

	 	 






A-3









 






[Reverse of Security]




AVANIR PHARMACEUTICALS, INC.



This Security is one of a duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an



Indenture, dated as of                      ___, 201___ (herein called the “Indenture”) between the Company and
                    , as Trustee (herein called the “Trustee,” which term includes any
successor trustee under the Indenture with respect to the series of which this Security is a part),
to which Indenture and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the duly authorized series of
Securities designated on the face hereof (collectively, the “Securities”), [if applicable,
insert — and the aggregate principal amount of the Securities to be issued under such series
is limited to $                    (except for Securities authenticated and delivered upon transfer of, or
in exchange for, or in lieu of other Securities).] All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.



If an Event of Default, as defined in the Indenture, shall occur and be continuing, the principal
of the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.



[If applicable, insert — The Securities may not be redeemed prior to the Stated Maturity
Date.]



[If applicable, insert — The Securities are subject to redemption [ (l) (If
applicable, insert — on                     in any year commencing with the year                     and ending
with the year                     through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2) ] [If applicable, insert — at any
time [on or after                     ], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):



If redeemed on or before                     , ___% and if redeemed during the 12-month period beginning
of the years indicated at the Redemption Prices indicated below.




	 	 	 	 	 	 	 
	Year	 	Redemption Price	 	Year	 	Redemption Price
	 

	 	 
	 	 
	 	 




and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption [If applicable, insert — (whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that
installments of interest on this Security whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of
record at the




A-4









 







close of business on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]




     [If applicable, insert — The Securities are subject to redemption (1) on                     
in any year commencing with the year                     and ending with the year                     through
operation of the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after                     ], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning                     of the years indicated,



	 	 	 	 	 
	 	 	 	 	Redemption Price for
	 	 	Redemption Price for	 	Redemption Otherwise Than
	 	 	Redemption Through	 	Through Operation of the
	Year	 	Operation of the Sinking Fund	 	Sinking Fund
	 

	 	 
	 	 




and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date; provided, however, that installments of interest
on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holder of this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]




     [If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to
                    , redeem any Securities as contemplated by [Clause (2) of] the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application, directly or indirectly,
of moneys borrowed having an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ___% per annum.]



     [If applicable, insert — The sinking fund for the Securities provides for the
redemption on                     in each year, beginning with the year                     and ending with the year
                    , of [not less than] $                    ] [(“mandatory sinking fund”) and not more than
$                    ] aggregate principal amount of the Securities. [The Securities acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in the [describe
order] order in which they become due.]]



     Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more
than 60 days prior to the Redemption Date, all as provided in the Indenture.



A-5









 





     In the event of redemption of this Security in part only, a new Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.



     [If applicable, insert conversion provisions set forth in any Board Resolution or indenture
supplemental to the Indenture.]



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of not less than a majority of the aggregate principal amount of
the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by
the Company with certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the Holders of not less than a majority of the aggregate principal amount, in certain
instances, of the Outstanding Securities of any series to waive, on behalf of all of the Holders of
Securities of such series, certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and other Securities issued upon the
registration of transfer hereof or conversion or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium or Make-Whole Amount, if any) and interest on this Security at the
times, places and rate, and in the coin or currency, herein prescribed.



     As provided in the Indenture and subject to certain limitations therein [and herein] set
forth, the transfer of this Security is registrable in the Security Register of the Company upon
surrender of this Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium or Make-Whole Amount, if any) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by
his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



     As provided in the Indenture and subject to certain limitations therein [and herein] set
forth, this Security is exchangeable for a like aggregate principal amount of Securities of
different authorized denominations but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same.



     This Security is subordinated to the prior payment in full in cash of Senior Indebtedness to
the extent set forth in Article Sixteen of the Indenture.



A-6









 





     The Securities of this series are issuable only in registered form [without coupons] in
denominations of $                    and any integral multiple thereof.



     No service charge shall be made for any such registration of transfer or conversion or
exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith,



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



     No recourse shall be had for the payment of the principal of or premium or Make-Whole Amount,
if any, or the interest on this Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against
any past, present or future stockholder, employee, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.



     The Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed entirely in such
State.



A-7









 





EXHIBIT B




FORMS OF CERTIFICATION




EXHIBIT B-1




FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER

SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE




CERTIFICATE




     [Insert title or sufficient description of Securities to be delivered]



     This is to certify that, as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States Federal income taxation regardless
of its source (“United States person(s)”), (ii) are owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial
institutions”) purchasing for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial institutions and who
hold the Securities through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise Avanir Pharmaceuticals, Inc. or its agent that
such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.



     As used herein, “United States” means the United States of America (including the States and
the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.



     We undertake to advise you promptly by tested telex or by telecopy on or prior to the date on
which you intend to submit your certification relating to the above-captioned Securities held by
you for our account in accordance with your operating procedures if any applicable statement herein
is not correct on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.



     This certificate excepts and does not relate to [U.S.$] of such interest in the
above-captioned Securities in respect of which we are not able to certify and as to which we



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understand an exchange for an interest in a permanent Global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made
until we do so certify.




     We understand that this certificate may be required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.



     Dated:                     



     [To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]



	 	 	 
	 

	 	[Name of Person Making Certification]
	 
	 	 
	 
	 

	 	 
	 

	 	(Authorized Signature)
	 

	 	Name:
	 

	 	Title:






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EXHIBIT B-2




FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM S.A. IN

CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL

SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE




CERTIFICATE




     [Insert title or sufficient description of Securities to be delivered]



     This is to certify that, based solely on written certifications that we have received in
writing, by tested telex or by electronic transmission from each of the persons appearing in our
records as persons entitled to a portion of the principal amount set forth below (our “Member
Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$] principal
amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation regardless of its source
(“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or through its agent,
that we may advise Avanir Pharmaceuticals, Inc. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also described in clause (i)
or (ii)) have certified that they have not acquired the Securities for purposes of resale directly
or indirectly to a United States person or to a person within the United States or its possessions.



     As used herein, “United States” means the United States of America (including the States and
the District of Columbia); and its “Possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.



     We further certify that (i) we are not making available herewith for exchange (or, if
relevant, collection of any interest) any portion of the temporary Global Security representing the
above-captioned Securities excepted in the above-referenced certificates of Member Organizations
and (ii) as of the date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.



     We understand that this certification is required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in



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connection with which this certificate is or would be relevant, we irrevocably authorize you
to produce this certificate or a copy thereof to any interested party in such proceedings.




Dated:                     




     [To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]



     [Morgan Guaranty Trust Company of New York, Brussels Office, as Operator of the Euroclear
System Clearstream Banking Luxembourg]



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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