Exhibit 4.3




 


MERIT
MEDICAL SYSTEMS, INC.


 


INDENTURE


 


Dated as of


 


            ,
20  


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page No.

  
	
  Article I
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Article II
  FORMS OF SECURITIES

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Terms of the Securities

  	
  6

  
	
  Section 2.02.

  	
  Form of Trustee’s Certificate
  of Authentication

  	
  6

  
	
   

  	
   

  	
   

  
	
  Article III
  THE DEBT SECURITIES

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Amount; Issuable in Series

  	
  7

  
	
  Section 3.02.

  	
  Denominations

  	
  9

  
	
  Section 3.03.

  	
  Execution, Authentication,
  Delivery and Dating

  	
  9

  
	
  Section 3.04.

  	
  Temporary Securities

  	
  10

  
	
  Section 3.05.

  	
  Registrar

  	
  11

  
	
  Section 3.06.

  	
  Transfer and Exchange

  	
  11

  
	
  Section 3.07.

  	
  Mutilated, Destroyed, Lost and
  Stolen Securities

  	
  13

  
	
  Section 3.08.

  	
  Payment of Interest; Interest
  Rights Preserved

  	
  14

  
	
  Section 3.09.

  	
  Cancellation

  	
  15

  
	
  Section 3.10.

  	
  Computation of Interest

  	
  15

  
	
  Section 3.11.

  	
  Currency of Payments in Respect of
  Securities

  	
  15

  
	
  Section 3.12.

  	
  Judgments

  	
  15

  
	
  Section 3.13.

  	
  CUSIP Numbers

  	
  16

  
	
   

  	
   

  	
   

  
	
  Article IV
  REDEMPTION OF SECURITIES

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Applicability of Right of
  Redemption

  	
  16

  
	
  Section 4.02.

  	
  Selection of Securities to be
  Redeemed

  	
  16

  
	
  Section 4.03.

  	
  Notice of Redemption

  	
  16

  
	
  Section 4.04.

  	
  Deposit of Redemption Price

  	
  17

  
	
  Section 4.05.

  	
  Securities Payable on Redemption
  Date

  	
  17

  
	
  Section 4.06.

  	
  Securities Redeemed in Part

  	
  17

  
	
   

  	
   

  	
   

  
	
  Article V
  SINKING FUNDS

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Applicability of Sinking Fund

  	
  17

  
	
  Section 5.02.

  	
  Mandatory Sinking Fund Obligation

  	
  18

  
	
  Section 5.03.

  	
  Optional Redemption at Sinking
  Fund Redemption Price

  	
  18

  
	
  Section 5.04.

  	
  Application of Sinking Fund
  Payment

  	
  18

  
	
   

  	
   

  	
   

  
	
  Article VI
  PARTICULAR COVENANTS OF THE COMPANY

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Payments of Securities

  	
  19

  
	
  Section 6.02.

  	
  Paying Agent

  	
  19

  
	
  Section 6.03.

  	
  To Hold Payment in Trust

  	
  20

  
	
  Section 6.04.

  	
  Merger, Consolidation and Sale of
  Assets

  	
  20

  
	
  Section 6.05.

  	
  Compliance Certificate

  	
  21

  
	
  Section 6.06.

  	
  Conditional Waiver by Holders of
  Securities

  	
  21

  
	
  Section 6.07.

  	
  Statement by Officers as to
  Default

  	
  21

  
	
   

  	
   

  
	
  Article VII
  REMEDIES OF TRUSTEE AND SECURITYHOLDERS

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Default

  	
  21

  
	
  Section 7.02.

  	
  Acceleration; Rescission and
  Annulment

  	
  22

  
	
  Section 7.03.

  	
  Other Remedies

  	
  23

  
	
  Section 7.04.

  	
  Trustee as Attorney-in-Fact

  	
  24

  
	
  Section 7.05.

  	
  Priorities

  	
  24

  



 


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  Section 7.06.

  	
  Control by Securityholders; Waiver
  of Past Defaults

  	
  25

  
	
  Section 7.07.

  	
  Limitation on Suits

  	
  25

  
	
  Section 7.08.

  	
  Undertaking for Costs

  	
  25

  
	
  Section 7.09.

  	
  Remedies Cumulative

  	
  26

  
	
   

  	
   

  	
   

  
	
  Article VIII
  CONCERNING THE SECURITYHOLDERS

  	
  26

  
	
   

  	
   

  
	
  Section 8.01.

  	
  Evidence of Action of
  Securityholders

  	
  26

  
	
  Section 8.02.

  	
  Proof of Execution or Holding of
  Securities

  	
  26

  
	
  Section 8.03.

  	
  Persons Deemed Owners

  	
  27

  
	
  Section 8.04.

  	
  Effect of Consents

  	
  27

  
	
   

  	
   

  	
   

  
	
  Article IX
  SECURITYHOLDERS’ MEETINGS

  	
  27

  
	
   

  	
   

  
	
  Section 9.01.

  	
  Purposes of Meetings

  	
  27

  
	
  Section 9.02.

  	
  Call of Meetings by Trustee

  	
  27

  
	
  Section 9.03.

  	
  Call of Meetings by Company or
  Securityholders

  	
  27

  
	
  Section 9.04.

  	
  Qualifications for Voting

  	
  28

  
	
  Section 9.05.

  	
  Regulation of Meetings

  	
  28

  
	
  Section 9.06.

  	
  Voting

  	
  28

  
	
  Section 9.07.

  	
  No Delay of Rights by Meeting

  	
  29

  
	
   

  	
   

  	
   

  
	
  Article X
  REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’ LISTS

  	
  29

  
	
   

  	
   

  
	
  Section 10.01.

  	
  Reports by Trustee

  	
  29

  
	
  Section 10.02.

  	
  Reports by the Company

  	
  29

  
	
  Section 10.03.

  	
  Securityholders’ Lists

  	
  29

  
	
   

  	
   

  	
   

  
	
  Article XI
  CONCERNING THE TRUSTEE

  	
  29

  
	
   

  	
   

  
	
  Section 11.01.

  	
  Rights of Trustees; Compensation
  and Indemnity

  	
  29

  
	
  Section 11.02.

  	
  Duties of Trustee

  	
  31

  
	
  Section 11.03.

  	
  Notice of Defaults

  	
  32

  
	
  Section 11.04.

  	
  Eligibility; Disqualification

  	
  32

  
	
  Section 11.05.

  	
  Registration and Notice; Removal

  	
  32

  
	
  Section 11.06.

  	
  Successor Trustee by Appointment

  	
  33

  
	
  Section 11.07.

  	
  Successor Trustee by Merger

  	
  34

  
	
  Section 11.08.

  	
  Right to Rely on Officer’s
  Certificate

  	
  34

  
	
  Section 11.09.

  	
  Appointment of Authenticating
  Agent

  	
  34

  
	
  Section 11.10.

  	
  Communications by Securityholders
  with Other Securityholders

  	
  35

  
	
   

  	
   

  	
   

  
	
  Article XII
  SATISFACTION AND DISCHARGE; DEFEASANCE

  	
  35

  
	
   

  	
   

  
	
  Section 12.01.

  	
  Applicability of Article

  	
  35

  
	
  Section 12.02.

  	
  Satisfaction and Discharge of
  Indenture

  	
  35

  
	
  Section 12.03.

  	
  Defeasance upon Deposit of Moneys
  or U.S Government Obligations

  	
  36

  
	
  Section 12.04.

  	
  Repayment to Company

  	
  37

  
	
  Section 12.05.

  	
  Indemnity for U.S Government
  Obligations

  	
  37

  
	
  Section 12.06.

  	
  Application of Trust Money

  	
  37

  
	
  Section 12.07.

  	
  Deposits of Non-U.S

  	
  37

  
	
   

  	
   

  	
   

  
	
  Article XIII
  IMMUNITY OF CERTAIN PERSONS

  	
  37

  
	
   

  	
   

  
	
  Section 13.01.

  	
  No Personal Liability

  	
  37

  
	
   

  	
   

  	
   

  
	
  Article XIV
  SUPPLEMENTAL INDENTURES

  	
  38

  
	
   

  	
   

  
	
  Section 14.01.

  	
  Without Consent of Securityholders

  	
  38

  
	
  Section 14.02.

  	
  With Consent of Securityholders;
  Limitations

  	
  39

  
	
  Section 14.03.

  	
  Trustee Protected

  	
  40

  
	
  Section 14.04.

  	
  Effect of Execution of Supplemental
  Indenture

  	
  40

  
	
  Section 14.05.

  	
  Notation on or Exchange of
  Securities

  	
  40

  



 


ii

















 


	
  Section 14.06.

  	
  Conformity with TIA

  	
  40

  
	
   

  	
   

  	
   

  
	
  Article XV
  SUBORDINATION OF SECURITIES

  	
  40

  
	
   

  	
   

  
	
  Section 15.01.

  	
  Agreement to Subordinate

  	
  40

  
	
  Section 15.02.

  	
  Distribution on Dissolution,
  Liquidation and Reorganization; Subrogation of Securities

  	
  41

  
	
  Section 15.03.

  	
  No Payment on Securities in Event
  of Default on Senior Indebtedness

  	
  42

  
	
  Section 15.04.

  	
  Payments on Securities Permitted

  	
  42

  
	
  Section 15.05.

  	
  Authorization of Securityholders
  to Trustee to Effect Subordination

  	
  42

  
	
  Section 15.06.

  	
  Notices to Trustee

  	
  42

  
	
  Section 15.07.

  	
  Trustee as Holder of Senior
  Indebtedness

  	
  43

  
	
  Section 15.08.

  	
  Modifications of Terms of Senior
  Indebtedness

  	
  43

  
	
  Section 15.09.

  	
  Reliance on Judicial Order or
  Certificate of Liquidating Agent

  	
  43

  
	
  Section 15.10.

  	
  Satisfaction and Discharge;
  Defeasance and Covenant Defeasance

  	
  43

  
	
  Section 15.11.

  	
  Trustee Not Fiduciary for Holders
  of Senior Indebtedness

  	
  43

  
	
   

  	
   

  	
   

  
	
  Article XVI
  MISCELLANEOUS PROVISIONS

  	
  43

  
	
   

  	
   

  
	
  Section 16.01.

  	
  Certificates and Opinions as to
  Conditions Precedent

  	
  43

  
	
  Section 16.02.

  	
  Trust Indenture Act Controls

  	
  44

  
	
  Section 16.03.

  	
  Notices to the Company and Trustee

  	
  44

  
	
  Section 16.04.

  	
  Notices to Securityholders; Waiver

  	
  44

  
	
  Section 16.05.

  	
  Legal Holiday

  	
  45

  
	
  Section 16.06.

  	
  Effects of Headings and Table of
  Contents

  	
  45

  
	
  Section 16.07.

  	
  Successors and Assigns

  	
  45

  
	
  Section 16.08.

  	
  Separability Clause

  	
  45

  
	
  Section 16.09.

  	
  Benefits of Indenture

  	
  45

  
	
  Section 16.10.

  	
  Counterparts Originals

  	
  45

  
	
  Section 16.11.

  	
  Governing Law; Waiver of Trial by
  Jury

  	
  45

  



 


iii

















 


MERIT
MEDICAL SYSTEMS, INC.


 


INDENTURE


 


Dated as of


 


            ,
20  


 


DEBT SECURITIES


 


Trustee


 


INDENTURE dated as of             ,
20    , among Merit Medical Systems, Inc., a Utah
corporation (the “Company”), and                     ,
as trustee (the “Trustee”).


 


WITNESSETH:


 


WHEREAS, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of debentures, notes, bonds or other evidences of indebtedness (the “Securities”) in an unlimited aggregate
principal amount to be issued from time to time in one or more series as
provided in this Indenture; and


 


WHEREAS, 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:


 


That, in consideration of the
premises and the purchase of the Securities by the Holders thereof for the equal
and proportionate benefit of all of the present and future Holders of the
Securities, each party agrees and covenants as follows:


 


ARTICLE I


 


DEFINITIONS


 


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


 


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


 


(b) all terms used herein
without definition which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
and


 


(c) 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.


 


(d) References to “Article” or “Section”
or other subdivision herein are references to an Article, Section or other
subdivision of the Indenture, unless the context otherwise requires.


 


Section 1.01. Definitions.
(a) Unless otherwise defined in this Indenture or the context otherwise
requires, all terms used herein shall have the meanings assigned to them in the
Trust Indenture Act.


 


(b) Unless the context
otherwise requires, the terms defined in this Section 1.01(b) shall
for all purposes of this Indenture have the meanings hereinafter set forth, the
following definitions to be equally applicable to both the singular and the
plural forms of any of the terms herein defined:


 


Affiliate: The term “Affiliate,”
with respect to any specified Person shall mean 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


 


1

















 


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:
The term “Authenticating Agent” shall have the meaning assigned to it in
Section 11.09.


 


Board of Directors: The term “Board
of Directors” shall mean either the board of directors of the Company or the
executive or any other committee of that board duly authorized to act in
respect hereof.


 


Board Resolution:
The term “Board Resolution” shall mean a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors (or by a committee of the Board of
Directors to the extent that any such other committee has been authorized by
the Board of Directors to establish or approve the matters contemplated) and to
be in full force and effect on the date of such certification and delivered to
the Trustee.


 


Business Day: The term “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, shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law or executive order to close.


 


Capital Stock: The term “Capital
Stock” shall mean:


 


(a) in the case of a
corporation, corporate stock;


 


(b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;


 


(c) in the case of a
partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and


 


(d) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.


 


Code: The term
“Code” shall mean the Internal Revenue Code of 1986 as in effect on the date
hereof.


 


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


 


Company Order:
The term “Company Order” shall mean a written order signed in the name of the
Company by the Chairman, Chief Executive Officer, President, Chief Financial
Officer, Treasurer, Controller, Assistant Controller, Secretary or any
Assistant Secretary of the Company, and delivered to the Trustee.


 


Corporate Trust Office: The
term “Corporate Trust Office,” or other similar term, shall mean the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at             ,
or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the principal corporate trust officer of any
successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).


 


Currency: The
term “Currency” shall mean U.S. Dollars or Foreign Currency.


 


Default: The term
“Default” shall have the meaning assigned to it in Section 11.03.


 


Defaulted Interest: The
term “Defaulted Interest” shall have the same meaning assigned to it in
Section 3.08(b).


 


Depositary: The
term “Depositary” shall mean, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.01
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, “Depositary” as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Securities of
that series.


 


2

















 


Designated Currency: The
term “Designated Currency” shall have the same meaning assigned to it in
Section 3.12.


 


Discharged: The
term “Discharged” shall have the meaning assigned to it in Section 12.03.


 


EDGAR:  The
term “EDGAR” shall mean the Electronic Data Gathering, Analysis and Retrieval
System maintained by the SEC.


 


Event of Default: The
term “Event of Default” shall have the meaning specified in Section 7.01.


 


Exchange Act: The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.


 


Exchange Rate: The
term “Exchange Rate” shall have the meaning assigned to it in
Section 7.01.


 


Floating Rate Security: The
term “Floating Rate Security” shall mean a Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 3.01.


 


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


 


GAAP: The term “GAAP,”
with respect to any computation required or permitted hereunder, shall mean
generally accepted accounting principles in the United States as in effect from
time to time, including, without limitation, those set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession.


 


Global Security: The
term “Global Security” shall mean any Security that evidences all or part of a
series of Securities, issued in fully-registered certificated form to the
Depositary for such series in accordance with Section 3.03 and bearing the
legend prescribed in Section 3.03(g).


 


Holder; Holder of Securities: The
terms “Holder” and “Holder of Securities” are defined under “Security holder;
Holder of Securities; Holder.”


 


Indebtedness: The
term “Indebtedness” shall mean any and all obligations of a Person for money
borrowed which, in accordance with GAAP, would be reflected on the balance
sheet of such Person as a liability on the date as of which Indebtedness is to
be determined.


 


Indenture: The
term “Indenture” or “this Indenture” shall mean this instrument and all
indentures supplemental hereto.


 


Interest: The
term “interest” shall mean, with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, interest payable after
Maturity.


 


Interest Payment Date: The
term “Interest Payment Date” shall mean, with respect to any Security, the
Stated Maturity of an installment of interest on such Security.


 


Mandatory Sinking Fund Payment: The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in
Section 5.01.


 


Maturity: The
term “Maturity,” with respect to any Security, shall mean the date on which the
principal of such Security shall become due and payable as therein and herein
provided, whether by declaration, call for redemption or otherwise.


 


Members: The
term “Members” shall have the meaning assigned to it in Section 3.03(i).


 


Officer’s Certificate: The
term “Officer’s Certificate” shall mean a certificate signed by any of the
Chairman of the Board of Directors, Chief Executive Officer, President, Chief
Financial Officer, Treasurer, Controller, Assistant Controller, Secretary or
any Assistant Secretary of the Company and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 16.01 if
and to the extent required by the provisions of such Section.


 


3

















 


Opinion of Counsel: The
term “Opinion of Counsel” shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company, or may be
other counsel that meets the requirements provided for in Section 16.01.


 


Optional Sinking Fund Payment: The
term “Optional Sinking Fund Payment” shall have the meaning assigned to it in
Section 5.01.


 


Original Issue Discount Security: The
term “Original Issue Discount Security” shall mean any Security that is issued
with “original issue discount” within the meaning of Section 1273(a) of
the Code and the regulations thereunder and any other Security designated by
the Company as issued with original issue discount for United States federal
income tax purposes.


 


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


 


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


 


(b) Securities or portions
thereof for which payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities
or Securities as to which the Company’s obligations have been Discharged;
provided, however, that if such Securities or portions thereof 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; and


 


(c) Securities that have been
paid pursuant to Section 3.07(b) 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 a Responsible Officer of the Trustee proof satisfactory to it
that such Securities are held by a protected 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 Securities
of a series Outstanding have performed any action hereunder, Securities owned
by the Company or any other obligor upon the Securities of such series 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 relying upon any such action, only Securities of such
series that a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Securities so owned that 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 to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
such Securities or any Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of Outstanding
Securities of a series have performed any action hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purpose shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 7.02 and the principal amount of a Security denominated in a
Foreign Currency that shall be deemed to be Outstanding for such purpose shall
be the amount calculated pursuant to Section 3.11(b).


 


Paying Agent:
The term “Paying Agent” shall have the meaning assigned to it in
Section 6.02(a).


 


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


 


Place of Payment: The
term “Place of Payment” shall mean, when used with respect to the Securities of
any series, the place or places where the principal of and premium, if any, and
interest on the Securities of that series are payable as specified pursuant to
Section 3.01.


 


Predecessor Security: The
term “Predecessor Security” shall mean, with respect to any Security, 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 3.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.


 


Record Date: The
term “Record Date” shall mean, with respect to any interest payable on any
Security on any Interest Payment Date, the close of business on any date
specified in such Security for the payment of interest pursuant to
Section 3.01.


 


4

















 


Redemption Date: The
term “Redemption Date” shall mean, when used with respect to any Security to be
redeemed, in whole or in part, the date fixed for such redemption by or
pursuant to this Indenture and the terms of such Security, which, in the case
of a Floating Rate Security, unless otherwise specified pursuant to
Section 3.01, shall be an Interest Payment Date only.


 


Redemption Price: The
term “Redemption Price,” when used with respect to any Security to be redeemed,
in whole or in part, shall mean the price at which it is to be redeemed
pursuant to the terms of the Security and this Indenture.


 


Register: The
term “Register” shall have the meaning assigned to it in Section 3.05(a).


 


Registrar: The
term “Registrar” shall have the meaning assigned to it in Section 3.05(a).


 


Responsible Officers:
The term “Responsible Officers” of the Trustee hereunder shall mean any Vice
President, any Assistant Vice President, any Trust Officer, any Assistant Trust
Officer or any other officer associated with the corporate trust department of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.


 


SEC: The term “SEC”
shall mean the U.S. Securities and Exchange Commission, as constituted from
time to time.


 


Securities Act: The
term “Securities Act” shall mean the Securities Act of 1933, as amended.


 


Security: The
term “Security” or “Securities” shall have the meaning stated in the recitals
and shall more particularly mean one or more of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of this
Indenture.


 


Security Custodian: The
term “Security Custodian” shall mean the custodian with respect to any Global
Security appointed by the Depositary, or any successor Person thereto, and
shall initially be the Paying Agent.


 


Securityholder; Holder of Securities; Holder: The term “Securityholder” or “Holder of Securities” or “Holder,”
shall mean the Person in whose name Securities shall be registered in the
Register kept for that purpose hereunder.


 


Senior Indebtedness: The
term “Senior Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (x) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed, for
money borrowed other than (a) any Indebtedness of the Company which when
incurred, and without respect to any election under Section 1111(b) of
the Federal Bankruptcy Code, was without recourse to the Company, (b) any
Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness
to any employee of the Company, (d) any liability for taxes,
(e) Trade Payables and (f) any Indebtedness of the Company which is
expressly subordinate in right of payment to any other Indebtedness of the
Company, and (y) renewals, extensions, modifications and refundings of any
such Indebtedness. For purposes of the foregoing and the definition of “Senior
Indebtedness,” the phrase “subordinated in right of payment” means debt
subordination only and not lien subordination, and accordingly,
(i) unsecured indebtedness shall not be deemed to be subordinated in right
of payment to secured indebtedness merely by virtue of the fact that it is
unsecured, and (ii) junior liens, second liens and other contractual
arrangements that provide for priorities among Holders of the same or different
issues of indebtedness with respect to any collateral or the proceeds of
collateral shall not constitute subordination in right of payment. This
definition may be modified or superseded by a supplemental indenture.


 


Special Record Date: The
term “Special Record Date” shall have the meaning assigned to it in
Section 3.08(b)(i).


 


Stated Maturity: The
term “Stated Maturity” when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or
premium, if any, on such Security or such installment of interest is due and
payable.


 


Subsidiary: The
term “Subsidiary,” when used with respect to any Person, shall mean:


 


5
















 


(a) any corporation, limited
liability company, association or other business entity of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard
to the occurrence of any contingency and after giving effect to any voting
agreement or stockholders’ agreement that effectively transfers voting power)
to vote in the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and


 


(b) any partnership
(i) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (ii) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).


 


Successor Company: The
term “Successor Company” shall have the meaning assigned to it in
Section 3.06(i).


 


Trade Payables: The
term “Trade Payables” means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the Company or
any Subsidiary of the Company in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities).


 


Trust Indenture Act; TIA: The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939,
as amended.


 


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


 


U.S. Dollars: The
term “U.S. Dollars” shall mean such currency of the United States as at the
time of payment shall be legal tender for the payment of public and private
debts.


 


U.S. Government Obligations: The
term “U.S. Government Obligations” shall mean (i) direct non-callable
obligations of, or guaranteed by, the United States or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States, in either case, for the payment of which guarantee or
obligation the full faith and credit of the United States is pledged.


 


United States: The
term “United States” shall mean the United States of America (including the
States and the District of Columbia), its territories and its possessions and
other areas subject to its jurisdiction.


 


ARTICLE II


 


FORMS OF
SECURITIES


 


Section 2.01. Terms of the
Securities.


 


(a) The Securities of each
series shall be substantially in the form set forth in a Company Order or in
one or more indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification 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 securities exchange on which any series of the Securities may
be listed or of any automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers executing
such Securities as conclusively evidenced by their execution of such
Securities.


 


(b) The terms and provisions of
the Securities shall constitute, and are hereby expressly made, a part of this
Indenture, and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.


 


Section 2.02. Form of
Trustee’s Certificate of Authentication.


 


(a) Only such of the Securities
as shall bear thereon a certificate substantially in the form of the Trustee’s
certificate of authentication hereinafter recited, executed by the Trustee by
manual signature, shall be valid or become obligatory for any purpose or
entitle the Holder thereof to any right or benefit under this Indenture.


 


6

















 


(b) Each Security shall be
dated the date of its authentication, except that any Global Security shall be
dated as of the date specified as contemplated in Section 3.01.


 


(c) The form of the Trustee’s
certificate of authentication to be borne by the Securities shall be
substantially as follows:


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


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


 


Date of Authentication:
            
                    ,
as Trustee


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


Section 2.03. Form of
Trustee’s Certificate of Authentication by an Authenticating Agent. If at
any time there shall be an Authenticating Agent appointed with respect to any
series of Securities, then the Trustee’s Certificate of Authentication by such
Authenticating Agent to be borne by Securities of each such series shall be
substantially as follows:


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This is one of the Securities issued
referred to in the within-mentioned Indenture.


 


Date of Authentication:
                                 ,
as Trustee


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


ARTICLE III


 


THE DEBT
SECURITIES


 


Section 3.01. Amount;
Issuable in Series. The aggregate principal amount of Securities that may
be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series. There shall be set forth in a
Company Order or in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:


 


(a) the title of the Securities
of the series (which shall distinguish the Securities of such series from the
Securities of all other series, except to the extent that additional Securities
of an existing series are being issued);


 


(b) whether the Securities will
be secured or unsecured, and the terms of any secured debt;


 


(c) the terms of the
subordination of any series of subordinated Securities;


 


(d) 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 transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 3.04, 3.06, 3.07,
4.06, or 14.05);


 


(e) the dates on which or
periods during which the Securities of the series may be issued, and the dates
on, or the range of dates within, which the principal of and premium, if any,
on the Securities of such series are or may be payable or the method by which
such date or dates shall be determined or extended;


 


(f) the rate or rates at which
the Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which such
interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which any such interest shall be
payable, and the Record Dates for the determination of Holders to whom interest
is payable on such Interest Payment Dates or the method by which such date or
dates shall be determined, the right, if any, to extend or defer interest
payments and the duration of such extension or deferral;


 


7

















 


(g) if other than U.S. Dollars,
the Currency in which Securities of the series shall be denominated or in which
payment of the principal of, premium, if any, or interest on the Securities of
the series shall be payable and any other terms concerning such payment;


 


(h) if the amount of payment of
principal of, premium, if any, or interest on the Securities of the series may
be determined with reference to an index, formula or other method including,
but not limited to, an index based on a Currency or Currencies other than that
in which the Securities are stated to be payable, the manner in which such
amounts shall be determined;


 


(i) if the principal of,
premium, if any, or interest on Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency other than that
in which the Securities are denominated or stated to be payable without such
election, the period or periods within which, and the terms and conditions upon
which, such election may be made and the time and the manner of determining the
exchange rate between the Currency in which the Securities are denominated or
payable without such election and the Currency in which the Securities are to
be paid if such election is made;


 


(j) the place or places, if
any, in addition to or instead of the Corporate Trust Office of the Trustee
where the principal of, premium, if any, and interest on Securities of the
series shall be payable, and where Securities of any series may be presented
for registration of transfer, exchange or conversion, and the place or places
where notices and demands to or upon the Company in respect of the Securities
of such series may be made;


 


(k) the form of consideration
in which principal of, premium or interest on the Securities will be paid;


 


(l) the price or prices at
which, the period or periods within which or the date or dates on which, and
the terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company, if the Company is to have
that option;


 


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


 


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


 


(o) if other than the principal
amount thereof, the portion of the principal amount of the Securities of the
series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 7.02;


 


(p) whether the Securities of
the series are to be issued as Original Issue Discount Securities and the
amount of discount with which such Securities may be issued;


 


(q) provisions, if any, for the
defeasance of Securities of the series in whole or in part and any addition or
change in the provisions related to satisfaction and discharge;


 


(r) whether the Securities of
the series are to be issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary for such Global Security or
Securities and the terms and conditions, if any, upon which interests in such
Global Security or Securities may be exchanged in whole or in part for the
individual Securities represented thereby;


 


(s) the date as of which any
Global Security of the series shall be dated if other than the original
issuance of the first Security of the series to be issued;


 


(t) the form of the Securities
of the series;


 


(u) if the Securities of the
series are to be convertible into or exchangeable for any securities or
property of any Person (including the Company), the terms and conditions upon
which such Securities will be so convertible or exchangeable, and any additions
or changes, if any, to permit or facilitate such conversion or exchange;


 


(v) whether the Securities of
such series are subject to subordination and the terms of such subordination;


 


(w) any restriction or
condition on the transferability of the Securities of such series;


 


8

















 


(x) any addition or change in
the provisions related to compensation and reimbursement of the Trustee which
applies to Securities of such series;


 


(y) any addition or change in
the provisions related to supplemental indentures set forth in Sections 14.04
and 14.02 which applies to Securities of such series;


 


(z) provisions, if any,
granting special rights to Holders upon the occurrence of specified events;


 


(aa) any addition to or change in
the Events of Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and payable pursuant to
Section 7.02 and any addition or change in the provisions set forth in Article VII
which applies to Securities of the series;


 


(bb) any addition to or change in
the covenants set forth in Article VI which applies to Securities of the
series; and


 


(cc) any other terms of the
Securities of such series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 14.01).


 


All Securities of any one series
shall be substantially identical, except as to denomination and except as may
otherwise be provided herein or set forth in a Company Order or in one or more
indentures supplemental hereto.


 


Section 3.02. Denominations.
In the absence of any specification pursuant to Section 3.01 with respect
to Securities of any series, the Securities of such series shall be issuable
only as Securities in denominations of any integral multiple of $1,000, and
shall be payable only in U.S. Dollars.


 


Section 3.03. Execution,
Authentication, Delivery and Dating.


 


(a) The Securities shall be
executed in the name and on behalf of the Company by the manual or facsimile
signature of its Chairman of the Board of Directors, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer or Treasurer. If
the Person whose signature is on a Security no longer holds that office at the
time the Security is authenticated and delivered, the Security shall
nevertheless be valid.


 


(b) At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities and, if required pursuant to Section 3.01, a
supplemental indenture or Company Order setting forth the terms of the
Securities of a series.


 


The Trustee shall thereupon
authenticate and deliver such Securities without any further action by the
Company. The Company Order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated.


 


(c) In authenticating the first
Securities of any series and accepting the additional responsibilities under
this Indenture in relation to such Securities the Trustee shall receive, and
(subject to Section 11.02) shall be fully protected in relying upon an
Officer’s Certificate and an Opinion of Counsel, each prepared in accordance
with Section 16.01 stating that the conditions precedent, if any, provided
for in the Indenture have been complied with.


 


(d) The Trustee shall have the
right to decline to authenticate and deliver the Securities under this
Section 3.03 if the issue of the Securities pursuant to this Indenture
will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.


 


(e) Each Security shall be
dated the date of its authentication, except as otherwise provided pursuant to
Section 3.01 with respect to the Securities of such series.


 


(f) Notwithstanding the
provisions of Section 3.01 and of this Section 3.03, if all of the
Securities of any series are not to be originally issued at the same time, then
the documents required to be delivered pursuant to this Section 3.03 must
be delivered only once prior to the authentication and delivery of the first
Security of such series;


 


(g) If the Company shall
establish pursuant to Section 3.01 that the Securities of a series are to
be issued in whole or in part in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall authenticate and deliver
one or more Global Securities that (i) shall represent an aggregate amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such Global Securities,


 


9

















 


(ii) shall be registered, if in
registered form, in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary’s instruction and
(iv) shall bear a legend substantially to the following effect:


 


“Unless and until it is exchanged in
whole or in part for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.”


 


The aggregate principal amount of
each Global Security may from time to time be increased or decreased by
adjustments made on the records of the Security Custodian, as provided in this
Indenture.


 


(h) Each Depositary designated
pursuant to Section 3.01 for a Global Security in registered form must, at
the time of its designation and at all times while it serves as such
Depositary, be a clearing agency registered under the Exchange Act and any
other applicable statute or regulation.


 


(i) Members of, or participants
in, the Depositary (“Members”)
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Security Custodian under such
Global Security, and the Depositary may be treated by the Company, the Trustee,
the Paying Agent and the Registrar and any of their agents as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee, the Paying
Agent or the Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Members, the operation of customary
practices of the Depositary governing the exercise of the rights of an owner of
a beneficial interest in any Global Security. The Holder of a Global Security
may grant proxies and otherwise authorize any Person, including Members and
Persons that may hold interests through Members, to take any action that a
Holder is entitled to take under this Indenture or the Securities.


 


(j) No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in one of the forms provided for herein duly executed by the
Trustee or by an Authenticating Agent by manual or facsimile signature of an
authorized signatory of the Trustee, 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.


 


Section 3.04. 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 that are
printed, lithographed, typewritten, mimeographed or otherwise reproduced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form 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. Any such temporary Security may be in
global form, representing all or a portion of the Outstanding Securities of
such series. Every such temporary Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Security or Securities in lieu of which it is issued.


 


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


 


(c) Upon any exchange of a
portion of a temporary Global Security for a definitive Global Security or for
the individual Securities represented thereby pursuant to this
Section 3.04 or Section 3.06, the temporary Global


 


10

















 


Security shall be endorsed by the
Trustee to reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.


 


Section 3.05. Registrar.


 


(a) The Company will keep, at
an office or agency to be maintained by it in a Place of Payment where
Securities may be presented for registration or presented and surrendered for
registration of transfer or of exchange, and where Securities of any series
that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable (the “Registrar”),
a security register for the registration and the registration of transfer or of
exchange of the Securities (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the “Register”),
as in this Indenture provided, which Register shall at all reasonable times be
open for inspection by the Trustee. Such Register shall be in written form or
in any other form capable of being converted into written form within a
reasonable time. The Company may have one or more co-Registrars; the term “Registrar” includes any co-registrar.


 


(b) The Company shall enter
into an appropriate agency agreement with any Registrar or co-Registrar not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of each such agent. If the Company fails to maintain a
Registrar for any series, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 11.01. The
Company or any Affiliate thereof may act as Registrar, co-Registrar or transfer
agent.


 


(c) The Company hereby appoints
the Trustee at its Corporate Trust Office as Registrar in connection with the
Securities and this Indenture, until such time as another Person is appointed
as such.


 


Section 3.06. Transfer and
Exchange.


 


(a) Transfer.


 


(i) Upon
surrender for registration of transfer of any Security of any series at the
Registrar the Company shall execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, in the name of the designated transferee,
one or more new Securities of the same series for like aggregate principal
amount of any authorized denomination or denominations. The transfer of any
Security shall not be valid as against the Company or the Trustee unless
registered at the Registrar at the request of the Holder, or at the request of
his, her or its attorney duly authorized in writing.


 


(ii) Notwithstanding
any other provision of this Section, unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.


 


(b) Exchange.


 


(i) At
the option of the Holder, Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for other Securities of
the same series for like aggregate principal amount of any authorized
denomination or denominations, upon surrender of the Securities to be exchanged
at the Registrar.


 


(ii) Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.


 


(c) Exchange of Global
Securities for Individual Securities. Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
individual Securities.


 


(i) Individual
Securities shall be issued to all owners of beneficial interests in a Global
Security in exchange for such interests if: (A) at any time the Depositary
for the Securities of a series notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for the Securities of such series shall no longer be
eligible under Section 3.03(h) and, in each case, a successor
Depositary is not appointed by the Company within 90


 


11

















 


days of such notice, or (B) the
Company executes and delivers to the Trustee and the Registrar an Officer’s
Certificate stating that such Global Security shall be so exchangeable.


 


In connection with the exchange of
an entire Global Security for individual Securities pursuant to this subsection
(c), such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities of
such series, will authenticate and deliver to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global
Security, an equal aggregate principal amount of individual Securities of
authorized denominations.


 


(ii) The
owner of a beneficial interest in a Global Security will be entitled to receive
an individual Security in exchange for such interest if an Event of Default has
occurred and is continuing. Upon receipt by the Security Custodian and
Registrar of instructions from the Holder of a Global Security directing the
Security Custodian and Registrar to (x) issue one or more individual
Securities in the amounts specified to the owner of a beneficial interest in
such Global Security and (y) debit or cause to be debited an equivalent
amount of beneficial interest in such Global Security, subject to the rules and
regulations of the Depositary:


 


(A) the
Security Custodian and Registrar shall notify the Company and the Trustee of
such instructions, identifying the owner and amount of such beneficial interest
in such Global Security;


 


(B) the
Company shall promptly execute and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities of such series,
shall authenticate and deliver to such beneficial owner individual Securities
in an equivalent amount to such beneficial interest in such Global Security;
and


 


(C) the
Security Custodian and Registrar shall decrease such Global Security by such
amount in accordance with the foregoing. In the event that the individual
Securities are not issued to each such beneficial owner promptly after the
Registrar has received a request from the Holder of a Global Security to issue
such individual Securities, the Company expressly 14 acknowledges, with respect
to the right of any Holder to pursue a remedy pursuant to Section 7.07
hereof, the right of any beneficial Holder of Securities to pursue such remedy
with respect to the portion of the Global Security that represents such
beneficial Holder’s Securities as if such individual Securities had been
issued.


 


(iii) If
specified by the Company pursuant to Section 3.01 with respect to a series
of Securities, the Depositary for such series of Securities may surrender a
Global Security for such series of Securities in exchange in whole or in part
for individual Securities of such series on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge,


 


(A) to
each Person specified by such Depositary a new individual Security or
Securities of the same series, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for such
Person’s beneficial interest in the Global Security; and


 


(B) to
such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of individual Securities delivered
to Holders thereof.


 


(iv) In
any exchange provided for in clauses (i) through (iii), the Company will
execute and the Trustee will authenticate and deliver individual Securities in
registered form in authorized denominations.


 


(v) Upon
the exchange in full of a Global Security for individual Securities, such
Global Security shall be canceled by the Trustee. Individual Securities issued
in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.


 


12

















 


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


 


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


 


(f) No service charge will be
made for any registration of transfer or exchange of Securities. The Company
may require payment of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than those expressly provided in this
Indenture to be made at the Company’s own expense or without expense or charge
to the Holders.


 


(g) The Company shall not be
required to (i) register, transfer or exchange Securities of any series
during a period beginning at the opening of business 15 days before the day of
the transmission of a notice of redemption of Securities of such series
selected for redemption under Section 4.03 and ending at the close of
business on the day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.


 


(h) Prior to the due
presentation for registration of transfer or exchange of any Security, the
Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any
of their agents may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for all purposes whatsoever, and none of the Company, the Trustee, the
Paying Agent, the Registrar, any co-Registrar or any of their agents shall be
affected by any notice to the contrary.


 


(i) In case a successor Company
(“Successor Company”) has executed
an indenture supplemental hereto with the Trustee pursuant to Article XIV,
any of the Securities authenticated or delivered pursuant to such transaction
may, from time to time, at the request of the Successor Company, be exchanged
for other Securities executed in the name of the Successor Company with such
changes in phraseology and form as may be appropriate, but otherwise identical
to the Securities surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Order of the Successor Company, shall
authenticate and deliver Securities as specified in such order for the purpose
of such exchange. If Securities shall at any time be authenticated and
delivered in any new name of a Successor Company pursuant to this
Section 3.06 in exchange or substitution for or upon registration of
transfer of any Securities, such Successor Company, at the option of the
Holders but without expense to them, shall provide for the exchange of all
Securities at the time Outstanding for Securities authenticated and delivered
in such new name.


 


(j) Each Holder of a Security
agrees to indemnify the Company and the Trustee against any liability that may
result from the transfer, exchange or assignment of such Holder’s Security in
violation of any provision of this Indenture and/or applicable United States
federal or state securities laws.


 


(k) The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security other than to
require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.


 


(l) Neither the Trustee nor any
agent of the Trustee shall have any responsibility for any actions taken or not
taken by the Depositary.


 


Section 3.07. Mutilated,
Destroyed, Lost and Stolen Securities.


 


(a) If (i) any mutilated
Security is surrendered to the Trustee at its Corporate Trust Office or
(ii) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee security or indemnity bond satisfactory to them to save
each of them and any Paying Agent harmless, and neither the Company nor the
Trustee receives notice that such Security has been acquired by a protected
purchaser, then the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a


 


13

















 


new Security of the same series and
of like tenor, form, terms and principal amount, bearing a number not
contemporaneously outstanding, that neither gain nor loss in interest shall
result from such exchange or substitution.


 


(b) In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay the amount due on such Security in accordance with its terms.


 


(c) 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
respect thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.


 


(d) Every new Security of any
series issued pursuant to this Section shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.


 


(e) 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.


 


Section 3.08. Payment of
Interest; Interest Rights Preserved.


 


(a) Interest on any 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 such Security (or one or
more Predecessor Securities) is registered at the close of business on the
Record Date for such interest notwithstanding the cancellation of such Security
upon any transfer or exchange subsequent to the Record Date. Payment of
interest on Securities shall be made at the Corporate Trust Office (except as
otherwise specified pursuant to Section 3.01) or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address shall appear in the Register or, in accordance with arrangements
satisfactory to the Trustee, by wire transfer to an account designated by the
Holder.


 


(b) Any interest on any
Security 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 Holder on the relevant Record Date
by virtue of his, her or its having been such a Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:


 


(i) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names such Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record
Date”), which shall be fixed in the following manner: The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 calendar days and not less than 10 calendar days prior to the date of
the proposed payment and not less than 10 calendar 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 the Holders of such Securities at their
addresses as they appear in the Register, not less than 10 calendar days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).


 


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


 


14

















 


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


 


(c) Subject to the provisions
set forth herein relating to Record Dates, each Security delivered pursuant to
any provision of this Indenture in exchange or substitution for, or upon
registration of transfer of, any other Security shall carry all the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


Section 3.09. Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Securities of any
series, all Securities surrendered for payment, redemption, registration of
transfer or exchange or credit against any sinking fund or otherwise shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
for cancellation and shall be promptly canceled by it and, if surrendered to
the Trustee, shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. The Trustee shall dispose of all canceled Securities held by
it in accordance with its then customary procedures and deliver a certificate
of such disposal to the Company upon its request therefor. The acquisition of
any Securities by the Company shall not operate as a redemption or satisfaction
of the Indebtedness represented thereby unless and until such Securities are
surrendered to the Trustee for cancellation.


 


Section 3.10. Computation of
Interest. Except as otherwise specified pursuant to Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.


 


Section 3.11. Currency of
Payments in Respect of Securities.


 


(a) Except as otherwise
specified pursuant to Section 3.01 for Securities of any series, payment
of the principal of and premium, if any, and interest on Securities of such
series will be made in U.S. Dollars.


 


(b) For purposes of any
provision of the Indenture in which the Holders of Outstanding Securities may
perform an action that requires that a specified percentage of the Outstanding
Securities of all series perform such action and for purposes of any decision
or determination by the Trustee of amounts due and unpaid for the principal of
and premium, if any, and interest on the Securities of all series in respect of
which moneys are to be disbursed ratably, the principal of and premium, if any,
and interest on the Outstanding Securities denominated in a Foreign Currency
will be the amount in U.S. Dollars based upon exchange rates, determined as
specified pursuant to Section 3.01 for Securities of such series, as of
the date for determining whether the Holders entitled to perform such action
have performed it or as of the date of such decision or determination by the
Trustee, as the case may be.


 


(c) Any decision or
determination to be made regarding exchange rates shall be made by an agent
appointed by the Company; provided, that such agent shall accept such
appointment in writing and the terms of such appointment shall, in the opinion
of the Company at the time of such appointment, require such agent to make such
determination by a method consistent with the method provided pursuant to
Section 3.01 for the making of such decision or determination. All
decisions and determinations of such agent regarding exchange rates shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of the Securities.


 


Section 3.12. Judgments.
The Company may provide pursuant to Section 3.01 for Securities of any
series that (a) the obligation, if any, of the Company to pay the
principal of, premium, if any, and interest on the Securities of any series in
a Foreign Currency or U.S. Dollars (the “Designated
Currency”) as may be specified pursuant to Section 3.01 is of
the essence and agrees that, to the fullest extent possible under applicable
law, judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of and premium, if any, and interest on
such Securities shall, notwithstanding any payment in any other Currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid
in such other Currency (after any premium and cost of exchange) on the business
day in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following
the day on which such Holder receives such payment; (c) if the amount in
the Designated Currency that may be so purchased for any reason falls short of
the amount originally due, the Company shall pay such additional amounts as may
be necessary to


 


15
















 


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


 


Section 3.13. CUSIP Numbers.
The Company in issuing any Securities may use CUSIP, ISIN or other similar
numbers, if then generally in use, and thereafter with respect to such series,
the Trustee may use such numbers in any notice of redemption or exchange with
respect to such series provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP, ISIN or other similar numbers.


 


ARTICLE IV


 


REDEMPTION
OF SECURITIES


 


Section 4.01. Applicability
of Right of Redemption. Redemption of Securities (other than pursuant to a
sinking fund, amortization or analogous provision) permitted by the terms of
any series of Securities shall be made (except as otherwise specified pursuant
to Section 3.01 for Securities of any series) in accordance with this
Article; provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series
shall govern.


 


Section 4.02. Selection of
Securities to be Redeemed.


 


(a) If the Company shall at any
time elect to redeem all or any portion of the Securities of a series then
Outstanding, it shall at least 30 days prior to the Redemption Date fixed by
the Company (unless a shorter period shall be satisfactory to the Trustee)
notify the Trustee of such Redemption Date and of the principal amount of
Securities to be redeemed, and thereupon the Trustee shall select, by lot or in
such other manner as the Trustee shall deem appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security of such series; provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. In any
case where more than one Security of such series is registered in the same
name, the Trustee may treat the aggregate principal amount so registered as if
it were represented by one Security of such series. The Trustee shall, as soon
as practicable, notify the Company in writing of the Securities and portions of
Securities so selected.


 


(b) 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 that has been or is to be redeemed. If the Company shall so direct,
Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for
redemption.


 


Section 4.03. Notice of
Redemption.


 


(a) Notice of redemption 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; provided, however, that the Company
makes such request at least 3 days prior to the date by which such notice of
redemption must be given to Holders in accordance with this Section 4.03;
provided further that, the text of such notice shall be prepared by the
Company. Any such notice shall be delivered in the manner provided in
Section 16.04 not less than 30 days before the Redemption Date unless the
Trustee consents to a shorter period, to the Holders of Securities of any
series to be redeemed in whole or in part pursuant to this Article. Any notice
so given shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. Failure to give such notice, or any defect in
such notice to the Holder of any Security of a series designated for
redemption, in whole or in part, shall not affect the sufficiency of any notice
of redemption with respect to the Holder of any other Security of such series.


 


(b) All notices of redemption
shall identify the Securities to be redeemed (including CUSIP, ISIN or
other similar numbers, if available) and shall state:


 


(i) such
election by the Company to redeem Securities of such series pursuant to
provisions contained in this Indenture or the terms of the Securities of such
series or a supplemental indenture establishing such series, if such be the
case;


 


(ii) the
Redemption Date;


 


16

















 


(iii) the
Redemption Price;


 


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


 


(v) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed, and that, if applicable, interest thereon
shall cease to accrue on and after said date;


 


(vi) the
Place or Places of Payment where such Securities are to be surrendered for
payment of the Redemption Price;


 


(vii) that
the redemption is for a sinking fund, if such is the case; and


 


(viii) that
the Securities must be surrendered to the Paying Agent for payment of the
Redemption Price.


 


Section 4.04. Deposit of
Redemption Price. On or prior to 11:00 a.m., Eastern time, on the
Redemption Date for any Securities, the Company shall 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 6.03) an amount of
money in the Currency in which such Securities are denominated (except as
provided pursuant to Section 3.01) sufficient to pay the Redemption Price
of such Securities or any portions thereof that are to be redeemed on that
date.


 


Section 4.05. Securities
Payable on Redemption Date. Notice of redemption having been given as
aforesaid, any Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price and from and after such date
(unless the Company shall Default in the payment of the Redemption Price) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price; provided, however, that (unless otherwise
provided pursuant to Section 3.01) installments of interest that have a
Stated Maturity on or prior to the Redemption Date for such Securities shall be
payable according to the terms of such Securities and the provisions of
Section 3.08.


 


If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal thereof and premium, if any, thereon shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.


 


Section 4.06. Securities
Redeemed in Part. Any Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01 with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his, her or its 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 like tenor and
form, 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; except that if a Global Security is
so surrendered, the Company shall execute, and the Trustee shall authenticate
and deliver to the Depositary for such Global Security, 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;
except that if a Global Security is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the Depositary for such
Global Security, 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. In the case of a Security
providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the payment of the redeemed
portion thereof.


 


ARTICLE V


 


SINKING
FUNDS


 


Section 5.01. Applicability
of Sinking Fund.


 


(a) Redemption of Securities
permitted or required pursuant to a sinking fund for the retirement of
Securities of a series by the terms of such series of Securities shall be made
in accordance with such terms of such series of Securities and this Article,
except as otherwise specified pursuant to Section 3.01 for Securities of
such


 


17

















 


series, provided, however, that if
any such terms of a series of Securities shall conflict with any provision of
this Article, the terms of such series shall govern.


 


(b) The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is
herein referred to as a “Mandatory Sinking
Fund Payment,” and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an “Optional Sinking Fund Payment.”
If provided for by the terms of Securities of any series, the cash amount of
any Mandatory Sinking Fund Payment may be subject to reduction as provided in
Section 5.02.


 


Section 5.02. Mandatory
Sinking Fund Obligation. The Company may, at its option, satisfy any
Mandatory Sinking Fund Payment obligation, in whole or in part, with respect to
a particular series of Securities by (a) delivering to the Trustee
Securities of such series in transferable form theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.03 or (b) receiving credit for Securities of
such series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee. The Trustee shall credit such Mandatory
Sinking Fund Payment obligation with an amount equal to the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such Mandatory Sinking Fund Payment shall be reduced
accordingly. If the Company shall elect to so satisfy any Mandatory Sinking
Fund Payment obligation, it shall deliver to the Trustee not less than 45 days
prior to the relevant sinking fund payment date a written notice signed on behalf
of the Company by its Chairman of the Board of Directors, Chief Executive
Officer, President, Chief Operating Officer, Chief Financial Officer or its
Treasurer, which shall designate the Securities (and portions thereof, if any)
so delivered or credited and which shall be accompanied by such Securities (to
the extent not theretofore delivered) in transferable form. In case of the
failure of the Company, at or before the time so required, to give such notice
and deliver such Securities the Mandatory Sinking Fund Payment obligation shall
be paid entirely in moneys.


 


Section 5.03. Optional
Redemption at Sinking Fund Redemption Price. In addition to the sinking
fund requirements of Section 5.02, to the extent, if any, provided for by
the terms of a particular series of Securities, the Company may, at its option,
make an Optional Sinking Fund Payment with respect to such Securities. Unless
otherwise provided by such terms, (a) to the extent that the right of the
Company to make such Optional Sinking Fund Payment shall not be exercised in
any year, it shall not be cumulative or carried forward to any subsequent year,
and (b) such optional payment shall operate to reduce the amount of any
Mandatory Sinking Fund Payment obligation as to Securities of the same series.
If the Company intends to exercise its right to make such optional payment in
any year it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a certificate signed by its Chairman of the
Board of Directors, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer or Treasurer stating that the Company will
exercise such optional right, and specifying the amount which the Company will
pay on or before the next succeeding sinking fund payment date. Such
certificate shall also state that no Event of Default has occurred and is
continuing.


 


Section 5.04. Application of
Sinking Fund Payment.


 


(a) If the sinking fund payment
or payments made in funds pursuant to either Section 5.02 or 5.03 with
respect to a particular series of Securities plus any unused balance of any
preceding sinking fund payments made in funds with respect to such series shall
exceed $50,000 (or a lesser sum if the Company shall so request, or such
equivalent sum for Securities denominated other than in U.S. Dollars), it shall
be applied by the Trustee on the sinking fund payment date next following the
date of such payment, unless the date of such payment shall be a sinking fund
payment date, in which case such payment shall be applied on such sinking fund
payment date, to the redemption of Securities of such series at the redemption
price specified pursuant to Section 4.03(b). The Trustee shall select, in
the manner provided in Section 4.02, for redemption on such sinking fund
payment date, a sufficient principal amount of Securities of such series to
absorb said funds, as nearly as may be, and shall, at the expense and in the
name of the Company, thereupon cause notice of redemption of the Securities to
be given in substantially the manner provided in Section 4.03(a) for
the redemption of Securities in part at the option of the Company, except that
the notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so applied by the
Trustee to the redemption of Securities of such series shall be added to the
next sinking fund payment received in funds by the Trustee and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.04.
Any and all sinking fund moneys held by the Trustee on the last sinking fund
payment date with respect to Securities of such series, and not held for the
payment or redemption of particular Securities of such series, shall be applied
by the Trustee to the payment of the principal of the Securities of such series
at Maturity.


 


18

















 


(b) On or prior to each sinking
fund payment date, the Company shall pay to the Trustee a sum equal to all
interest accrued to but not including the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date pursuant to this
Section 5.04.


 


(c) The Trustee shall not
redeem any Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund during
the continuance of a Default in payment of interest on any Securities of such
series or of any Event of Default (other than an Event of Default occurring as
a consequence of this paragraph) of which the Trustee has actual knowledge,
except that if the notice of redemption of any Securities of such series shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if funds sufficient for that purpose shall
be deposited with the Trustee in accordance with the terms of this Article.
Except as aforesaid, any moneys in the sinking fund at the time any such
Default or Event of Default shall occur and any moneys thereafter paid into the
sinking fund shall, during the continuance of such Default or Event of Default,
be held as security for the payment of all the Securities of such series;
provided, however, that in case such Default or Event of Default shall have
been cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date on which such moneys are required
to be applied pursuant to the provisions of this Section 5.04.


 


ARTICLE VI


 


PARTICULAR
COVENANTS OF THE COMPANY


 


The Company hereby covenants and
agrees as follows:


 


Section 6.01. Payments of
Securities. The Company will duly and punctually pay the principal of and
premium, if any, on each series of Securities, and the interest which shall
have accrued thereon, at the dates and place and in the manner provided in the
Securities and in this Indenture.


 


Section 6.02. Paying Agent.


 


(a) The Company will maintain
in each Place of Payment for any series of Securities, if any, an office or
agency where Securities may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served (the “Paying Agent”). The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as Paying Agent to receive all presentations, surrenders, notices and
demands.


 


(b) The Company may also from
time to time designate different or additional offices or agencies where the
Securities of any series may be presented or surrendered for any or all such
purposes (in or outside of such Place of Payment), and may from time to time
rescind any such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligations described
in the preceding paragraph. The Company will give prompt written notice to the
Trustee of any such additional designation or rescission of designation and of
any change in the location of any such different or additional office or
agency. The Company shall enter into an appropriate agency agreement with any
Paying Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of each such agent. The Company or
any Affiliate thereof may act as Paying Agent.


 


19

















 


Section 6.03. To Hold
Payment in Trust.


 


(a) If the Company or an
Affiliate thereof shall at any time act as Paying Agent with respect to any
series of Securities, then, on or before the date on which the principal of and
premium, if any, or interest on any of the Securities of that series by their
terms or as a result of the calling thereof for redemption shall become
payable, the Company or such Affiliate will segregate and hold in trust for the
benefit of the Holders of such Securities or the Trustee a sum sufficient to
pay such principal and premium, if any, or interest which shall have so become
payable until such sums shall be paid to such Holders or otherwise disposed of
as herein provided, and will notify the Trustee of its action or failure to act
in that regard. Upon any proceeding under any federal bankruptcy laws with
respect to the Company or any Affiliate thereof, if the Company or such
Affiliate is then acting as Paying Agent, the Trustee shall replace the Company
or such Affiliate as Paying Agent.


 


(b) If the Company shall
appoint, and at the time have, a Paying Agent for the payment of the principal
of and premium, if any, or interest on any series of Securities, then prior to
11:00 a.m., Eastern time, on the date on which the principal of and
premium, if any, or interest on any of the Securities of that series shall
become payable as aforesaid, whether by their terms or as a result of the
calling thereof for redemption, the Company will deposit with such Paying Agent
a sum sufficient to pay such principal and premium, if any, or interest, such
sum to be held in trust for the benefit of the Holders of such Securities or
the Trustee, and (unless such Paying Agent is the Trustee), the Company or any
other obligor of such Securities will promptly notify the Trustee of its
payment or failure to make such payment.


 


(c) If the Paying Agent shall
be other than the Trustee, the Company will cause such Paying Agent 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 6.03, that
such Paying Agent shall:


 


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


 


(ii) give
to the Trustee notice of any Default by the Company or any other obligor upon
the Securities of that series in the making of any payment of the principal of
and premium, if any, or interest on the Securities of that series; and


 


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


 


(d) Anything in this
Section 6.03 to the contrary notwithstanding, the Company may at any time,
for the purpose of obtaining a release, satisfaction or discharge of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or by any Paying Agent other than the Trustee
as required by this Section 6.03, 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.


 


(e) Subject to any applicable
abandoned property law, 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, if any, or interest on any Security of any series and remaining
unclaimed for two years after such principal and premium, if any, or interest
has become due and payable shall be paid to the Company upon Company Order 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 amounts 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 a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in             ,
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 6.04. Merger,
Consolidation and Sale of Assets. Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities:


 


(a) The Company will not
consolidate with any other entity or accept a merger of any other entity into
the Company or permit the Company to be merged into any other entity, or sell
other than for cash or lease all or substantially all its assets to another
entity, or purchase all or substantially all the assets of another entity,
unless


 


20

















 


(i) either the Company shall be
the continuing entity, or (ii) the successor, transferee or lessee entity
(if other than the Company) shall expressly assume, by indenture supplemental
hereto, executed and delivered by such entity prior to or simultaneously with
such consolidation, merger, sale or lease, the due and punctual payment of the
principal of and interest and premium, if any, on all the Securities, according
to their tenor, and the due and punctual performance and observance of all
other obligations to the Holders and the Trustee under this Indenture or under
the Securities to be performed or observed by the Company. A purchase by a
Subsidiary of all or substantially all of the assets of another entity shall
not be deemed to be a purchase of such assets by the Company.


 


(b) Upon any consolidation with
or merger into any other entity, or any sale other than for cash, or any
conveyance or lease of all or substantially all of the assets of the Company in
accordance with this Section 6.04, the successor entity formed by such
consolidation or into or with which the Company is merged or to which the
Company is sold or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
entity had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Securities, and from time to time such
entity may exercise each and every right and power of the Company under this
Indenture, in the name of the Company, or in its own name; and any act or
proceeding by any provision of this Indenture required or permitted to be done
by the Board of Directors or any officer of the Company may be done with like
force and effect by the like board or officer of any entity that shall at the
time be the successor of the Company hereunder. In the event of any such sale
or conveyance, but not any such lease, the Company (or any successor entity which
shall theretofore have become such in the manner described in this
Section 6.04) shall be discharged from all obligations and covenants under
this Indenture and the Securities and may thereupon be dissolved and
liquidated.


 


Section 6.05. Compliance Certificate.
Except as otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Company shall furnish to the Trustee annually,
within 120 days after the end of each fiscal year, a brief certificate from the
Chief Executive Officer, President, Chief Operating Officer, Principal
Financial Officer, Principal Accounting Officer or Treasurer as to his or her
knowledge of the Company’s compliance with all conditions and covenants under
this Indenture (which compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture) and, in
the event of any Default, specifying each such Default and the nature and
status thereof of which such person may have knowledge. Such certificates need
not comply with Section 16.01 of this Indenture.


 


Section 6.06. Conditional
Waiver by Holders of Securities. Anything in this Indenture to the contrary
notwithstanding, the Company may fail or omit in any particular instance to
comply with a covenant or condition set forth herein with respect to any series
of Securities if the Company shall have obtained and filed with the Trustee,
prior to the time of such failure or omission, evidence (as provided in Article VIII)
of the consent of the Holders of a majority in aggregate principal amount of
the Securities of such series at the time Outstanding, either waiving such
compliance in such instance or generally waiving 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, or impair any right
consequent thereon and, until such waiver shall have become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.


 


Section 6.07. Statement by
Officers as to Default. The Company shall deliver to the Trustee as soon as
possible and in any event within 30 days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default, an Officer’s
Certificate setting forth the details of such Event of Default or Default and
the action which the Company proposes to take with respect thereto.


 


ARTICLE VII


 


REMEDIES OF
TRUSTEE AND SECURITYHOLDERS


 


Section 7.01. Events of
Default. Except where otherwise indicated by the context or where the term
is otherwise defined for a specific purpose, the term “Event of Default” as used in this Indenture
with respect to Securities of any series shall mean one of the following
described events unless it is either inapplicable to a particular series or it
is specifically deleted or modified in the manner contemplated in Section 3.01:


 


(a) the failure of the Company
to pay any installment of interest on any Security of such series when and as
the same shall become payable, which failure shall have continued unremedied
for a period of 90 days; provided,


 


21

















 


however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of
interest for this purpose;


 


(b) the failure of the Company
to pay the principal of (and premium, if any, on) any Security of such series,
when and as the same shall become payable, whether at Maturity as therein
expressed, by call for redemption (otherwise than pursuant to a sinking fund),
by declaration as authorized by this Indenture or otherwise;


 


(c) the failure of the Company
to pay a sinking fund installment, if any, when and as the same shall become
payable by the terms of a Security of such series, which failure shall have
continued unremedied for a period of 30 days;


 


(d) the failure of the Company,
subject to the provisions of Section 6.06, to perform any covenants or
agreements contained in this Indenture (including any indenture supplemental
hereto pursuant to which the Securities of such series were issued as
contemplated by Section 3.01) (other than a covenant or agreement which
has been expressly included in this Indenture solely for the benefit of a
series of Securities other than that series and other than a covenant or agreement
a default in the performance of which is elsewhere in this Section 7.01
specifically addressed), which failure shall not have been remedied, or without
provision deemed to be adequate for the remedying thereof having been made, for
a period of 90 days after written notice shall have been given to the Company
by the Trustee or shall have been given to the Company and the Trustee by
Holders of not less than a majority in aggregate principal amount of the
Securities of such series then Outstanding, specifying such failure, requiring
the Company to remedy the same and stating that such notice is a “Notice of Default” hereunder;


 


(e) the entry by a court having
jurisdiction in the premises of a decree or order for relief in respect of the
Company in an involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or of substantially all the property of the Company or
ordering the winding-up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive days;


 


(f) the commencement by the
Company of a voluntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
the Company to the entry of an order for relief in an involuntary case under
any such law, or the consent by the Company to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company or of substantially all the
property of the Company or the making by it of an assignment for the benefit of
creditors or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any action; or


 


(g) the occurrence of any other
Event of Default with respect to Securities of such series as provided in
Section 3.01; provided, however, that no event described in clause
(d) or (other than with respect to a payment default) (g) above shall
constitute an Event of Default hereunder until a Responsible Officer assigned
to and working in the Trustee’s corporate trust department has actual knowledge
thereof or until a written notice of any such event is received by the Trustee
at the Corporate Trust Office, and such notice refers to the facts underlying
such event, the Securities generally, the Company and the Indenture.
Notwithstanding the foregoing provisions of this Section 7.01, if the principal
or any premium or interest on any Security is payable in a Currency other than
the Currency of the United States and such Currency is not available to the
Company for making payment thereof due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to Holders of the Securities by making such
payment in the Currency of the United States in an amount equal to the Currency
of the United States equivalent of the amount payable in such other Currency,
as determined by the Company by reference to the noon buying rate in for cable
transfers for such Currency (“Exchange Rate”),
as such Exchange Rate is reported or otherwise made available by the Federal
Reserve Bank of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 7.01, any payment
made under such circumstances in the Currency of the United States where the
required payment is in a Currency other than the Currency of the United States
will not constitute an Event of Default under this Indenture.


 


Section 7.02. Acceleration;
Rescission and Annulment.


 


(a) Except as otherwise contemplated
by Section 3.01 with respect to any series of Securities, if any one or
more of the above-described Events of Default (other than an Event of Default
specified in Section 7.01(e) or


 


22

















 


7.01(f)) shall happen with respect
to Securities of any series at the time Outstanding, then, and in each and
every such case, during the continuance of any such Event of Default, the
Trustee or the Holders of not less than a majority in principal amount of the Securities
of such series then Outstanding may declare the principal (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of and
all accrued but unpaid interest on all the Securities of such series then
Outstanding to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs
and is continuing, then in every such case, the principal amount of all of the
Securities of that series then Outstanding shall automatically, and without any
declaration or any other action on the part of the Trustee or any Holder,
become due and payable immediately. Upon payment of such amounts in the
Currency in which such Securities are denominated (subject to Section 7.01
and except as otherwise provided pursuant to Section 3.01), all
obligations of the Company in respect of the payment of principal of and
interest on the Securities of such series shall terminate.


 


(b) The provisions of
Section 7.02(a), however, are subject to the condition that, at any time
after the principal of all the Securities of such series, to which any one or
more of the above-described Events of Default is applicable, shall have been so
declared to be due and payable, and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter provided in this
Article, the Event of Default giving rise to such declaration of acceleration
shall, without further act, be deemed to have been waived, and such declaration
and its consequences shall, without further act, be deemed to have been
rescinded and annulled, if:


 


(i) the
Company has paid or deposited with the Trustee or Paying Agent a sum in the
Currency in which such Securities are denominated (subject to Section 7.01
and except as otherwise provided pursuant to Section 3.01) sufficient to
pay


 


(A) all
amounts owing the Trustee and any predecessor trustee hereunder under
Section 11.01(a) (provided, however, that all sums payable under this
clause shall be paid in U.S. Dollars);


 


(B) all
arrears of interest, if any, upon all the Securities of such series (with
interest, to the extent that interest thereon shall be legally enforceable, on
any overdue installment of interest at the rate borne by such Securities at the
rate or rates prescribed therefor in such Securities); and


 


(C) the
principal of and premium, if any, on any Securities of such series that have
become due otherwise than by such declaration of acceleration and interest
thereon; and


 


(ii) every
other Default and Event of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, has been cured or
waived as provided in Section 7.06.


 


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


 


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


 


Section 7.03. Other Remedies.
If the Company shall fail for a period of 30 days to pay any installment of
interest on the Securities of any series or shall fail to pay the principal of
and premium, if any, on any of the Securities of such series when and as the
same shall become due and payable, whether at Maturity, or by call for
redemption (other than pursuant to the sinking fund), by declaration as authorized
by this Indenture, or otherwise, or shall fail for a period of 30 days to make
any required sinking fund payment as to a series of Securities, then, upon
demand of the Trustee, the Company will pay to the Paying Agent for the benefit
of the Holders of Securities of such series then Outstanding the whole amount
which then shall have become due and payable on all the Securities of such
series, with interest on the overdue principal and premium, if any, and (so far
as the same may be legally enforceable) on the overdue installments of interest
at the rate borne by the Securities of such series, and all amounts owing the
Trustee and any predecessor trustee hereunder under Section 11.01(a).


 


23

















 


In case the Company shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceeding at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company or any other obligor upon the Securities of such series,
and collect the moneys adjudged or decreed to be payable out of the property of
the Company or any other obligor upon the Securities of such series, wherever
situated, in the manner provided by law. Every recovery of judgment in any such
action or other proceeding, subject to the payment to the Trustee of all
amounts owing the Trustee and any predecessor trustee hereunder under
Section 11.01(a), shall be for the ratable benefit of the Holders of such
series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may
be enforced by the Trustee without the possession of any of the Securities and
without the production of any thereof at any trial or any proceeding relative
thereto.


 


Section 7.04. Trustee as Attorney-in-Fact.
The Trustee is hereby appointed, and each and every Holder of the Securities,
by receiving and holding the same, shall be conclusively deemed to have
appointed the Trustee, the true and lawful attorney-in-fact of such Holder,
with authority to make or file (whether or not the Company shall be in Default
in respect of the payment of the principal of, or interest on, any of the
Securities), in its own name and as trustee of an express trust or otherwise as
it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or
property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and any
predecessor trustee hereunder and of the Holders of the Securities allowed in
any such proceeding and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to execute and deliver any and
all other papers and documents and to do and perform any and all other acts and
things, as it may deem necessary or advisable in order to enforce in any such
proceeding any of the claims of the Trustee and any predecessor trustee
hereunder and of any of such Holders in respect of any of the Securities; and
any receiver, assignee, trustee, custodian or debtor in any such proceeding is
hereby authorized, and each and every taker or Holder of the Securities, by
receiving and holding the same, shall be conclusively deemed to have authorized
any such receiver, assignee, trustee, custodian or debtor, to make any such
payment or delivery only to or on the order of the Trustee, and to pay to the
Trustee any amount due it and any predecessor trustee hereunder under
Section 11.01(a); provided, however, that nothing herein contained shall
be deemed to authorize or empower the Trustee to consent to or accept or adopt,
on behalf of any Holder of Securities, any plan of reorganization or
readjustment affecting the Securities or the rights of any Holder thereof, or
to authorize or empower the Trustee to vote in respect of the claim of any Holder
of any Securities in any such proceeding.


 


Section 7.05. Priorities.
Any moneys or properties collected by the Trustee with respect to a series of
Securities under this Article VII shall be applied in the following order,
at the date or dates fixed by the Trustee for the distribution of such moneys
or properties and, in the case of the distribution of such moneys or properties
on account of the Securities of any series, upon presentation of the Securities
of such series, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:


 


First: To the payment of all amounts
due to the Trustee and any predecessor trustee hereunder under
Section 11.01(a).


 


Second: In case the principal of the
Outstanding Securities of such series shall not have become due and be unpaid,
to the payment of interest on the Securities of such series, in the
chronological order of the Maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the rate borne by such Securities,
such payments to be made ratably to the Persons entitled thereto.


 


Third: In case the principal of the
Outstanding Securities of such series shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Securities of such series for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case such
moneys shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Securities of such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of principal and
premium, if any, over interest, or of interest over principal


 


24

















 


and premium, if any, or of any installment of
interest on any other Security of such series, ratably to the aggregate of such
principal and premium, if any, and accrued and unpaid interest.


 


Any surplus then remaining shall be
paid to the Company or as directed by a court of competent jurisdiction.


 


Section 7.06. Control by
Securityholders; Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities of any series at the time outstanding may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee hereunder, or of exercising any trust or power hereby
conferred upon the Trustee with respect to the Securities of such series,
provided, however, that, subject to the provisions of Sections 11.01 and 11.02,
the Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel determines in good faith that the action so
directed may not lawfully be taken or would be unduly prejudicial to Holders not
joining in such direction or would involve the Trustee in personal liability.
Prior to any declaration accelerating the Maturity of the Securities of any
series, the Holders of a majority in aggregate principal amount of such series
of Securities at the time Outstanding may on behalf of the Holders of all of
the Securities of such series waive any past Default or Event of Default
hereunder and its consequences except a Default in the payment of interest or
any premium on or the principal of the Securities of such series. Upon any such
waiver the Company, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon. Whenever any
Default or Event of Default hereunder shall have been waived as permitted by
this Section 7.06, said Default or Event of Default shall for all purposes
of the Securities of such series and this Indenture be deemed to have been
cured and to be not continuing.


 


Section 7.07. Limitation on
Suits. No Holder of any Security of any series shall have any right to
institute any action, suit or proceeding at law or in equity for the execution
of any trust hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an Event of Default with respect
to such series of Securities, unless such Holder previously shall have given to
the Trustee written notice of one or more of the Events of Default herein
specified with respect to such series of Securities, and unless also the
Holders of not less than a majority in principal amount of the Securities of
such series then Outstanding shall have requested the Trustee in writing to
take action in respect of the matter complained of, and unless also there shall
have been offered to the Trustee security and indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for 60 days after receipt of such notification, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; and such notification, request and offer of
indemnity are hereby declared in every such case to be conditions precedent to
any such action, suit or proceeding by any Holder of any Security of such
series; it being understood and intended that no one or more of the Holders of
Securities of such series shall have any right in any manner whatsoever by his,
her, its or their action to enforce any right hereunder, except in the manner
herein provided, and that every action, suit or proceeding at law or in equity
shall be instituted, had and maintained in the manner herein provided and for
the equal benefit of all Holders of the Outstanding Securities of such series;
provided, however, that nothing in this Indenture or in the Securities of such
series shall affect or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
the Securities of such series to the respective Holders of such Securities at
the respective due dates in such Securities stated, or affect or impair the
right, which is also absolute and unconditional, of such Holders to institute
suit to enforce the payment thereof.


 


Section 7.08. Undertaking
for Costs. All parties to this Indenture and each Holder of any Security,
by such Holder’s acceptance thereof, shall be deemed to have agreed that any court
may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit
or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of
an undertaking to pay the costs of such action, suit or proceeding, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such action, suit
or proceeding, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that the provisions of
this Section 7.08 shall not apply to any action, suit or proceeding
instituted by the Trustee, to any action, suit or proceeding instituted by any
one or more Holders of Securities holding in the aggregate more than 10% in
principal amount of the Securities of any series Outstanding, or to any action,
suit or proceeding instituted by any Holder of Securities of any series for the
enforcement of the payment of the principal of or premium, if any, or the
interest on, any of the Securities of such series, on or after the respective
due dates expressed in such Securities.


 


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Section 7.09. Remedies
Cumulative. No remedy herein conferred upon or reserved to the Trustee or
to the Holders of Securities of any series is intended to be exclusive of any
other remedy or remedies, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee
or of any Holder of the Securities of any series to exercise any right or power
accruing upon any Default or Event of Default shall impair any such right or
power or shall be construed to be a waiver of any such Default or Event of
Default or an acquiescence therein; and every power and remedy given by this Article VII
to the Trustee and to the Holders of Securities of any series, respectively,
may be exercised from time to time and as often as may be deemed expedient by
the Trustee or by the Holders of Securities of such series, as the case may be.
In case the Trustee or any Holder of Securities of any series shall have
proceeded to enforce any right under this Indenture and the proceedings for the
enforcement thereof shall have been discontinued or abandoned because of waiver
or for any other reason or shall have been adjudicated adversely to the Trustee
or to such Holder of Securities, then and in every such case the Company, the
Trustee and the Holders of the Securities of such series shall severally and
respectively be restored to their former positions and rights hereunder, and
thereafter all rights, remedies and powers of the Trustee and the Holders of
the Securities of such series shall continue as though no such proceedings had
been taken, except as to any matters so waived or adjudicated.


 


ARTICLE VIII


 


CONCERNING
THE SECURITYHOLDERS


 


Section 8.01. Evidence of
Action of Securityholders. Whenever in this Indenture it is provided that
the Holders of a specified percentage or a majority in aggregate principal
amount of the Securities or of any series of Securities may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified percentage or majority
have joined therein may be evidenced by (a) any instrument or any number
of instruments of similar tenor executed by Securityholders in person, an agent
or by a proxy appointed in writing, including through an electronic system for
tabulating consents operated by the Depositary for such series or otherwise
(such action becoming effective, except as herein otherwise expressly provided,
when such instruments or evidence of electronic consents are delivered to the
Trustee and, where it is hereby expressly required, to the Company), or by the
record of the Holders of Securities voting in favor thereof at any meeting of
Securityholders duly called and held in accordance with the provisions of Article IX,
or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Securityholders.


 


Section 8.02. Proof of
Execution or Holding of Securities. Proof of the execution of any
instrument by a Securityholder or his, her or its agent or proxy and proof of
the holding by any Person of any of the Securities shall be sufficient if made
in the following manner:


 


(a) The fact and date of the
execution by any Person of any such instrument may be proved (i) by the
certificate of any notary public or other officer in any jurisdiction who, by
the laws thereof, has power to take acknowledgments or proof of deeds to be
recorded within such jurisdiction, that the Person who signed such instrument
did acknowledge before such notary public or other officer the execution
thereof, (ii) by the affidavit of a witness of such execution sworn to before
any such notary or other officer or (iii) in such other reasonable manner
acceptable to the Trustee. Where such execution is by a Person acting in other
than his or her individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her authority.


 


(b) The ownership of Securities
of any series shall be proved by the Register of such Securities or by a
certificate of the Registrar for such series.


 


(c) The record of any Holders’
meeting shall be proved in the manner provided in Section 9.06.


 


(d) The Trustee may require
such additional proof of any matter referred to in this Section 8.02 as it
shall deem appropriate or necessary, so long as the request is a reasonable
one.


 


(e) If the Company shall
solicit from the Holders of Securities of any series any action, the Company
may, at its option fix in advance a record date for the determination of
Holders of Securities entitled to take such action, but the Company shall have
no obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Securities of record
at the close of business on such record date shall be deemed to be Holders of


 


26

















 


Securities for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities of such series have authorized or agreed or consented to such
action, and for that purpose the Outstanding Securities of such series shall be
computed as of such record date.


 


Section 8.03. Persons Deemed
Owners.


 


(a) The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and (subject to
Section 3.08) interest, if any, on, such Security and for all other
purposes whatsoever, whether or not such 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 payments made to any Holder, or upon
his, her or its order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon such
Security.


 


(b) None of the Company, the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.


 


Section 8.04. Effect of
Consents. After an amendment, supplement, waiver or other action becomes
effective as to any series of Securities, a consent to it by a Holder of such
series of Securities is a continuing consent conclusive and binding upon such
Holder and every subsequent Holder of the same Securities or portion thereof, and
of any Security issued upon the transfer thereof or in exchange therefor or in
place thereof, even if notation of the consent is not made on any such
Security. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.


 


ARTICLE IX


 


SECURITYHOLDERS’
MEETINGS


 


Section 9.01. Purposes of
Meetings. A meeting of Securityholders of any or all series may be called
at any time and from time to time pursuant to the provisions of this Article IX
for any of the following purposes:


 


(a) to give any notice to the
Company or to the Trustee, or to give any directions to the Trustee, or to
consent to the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article VIII;


 


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


 


(c) to consent to the execution
of an Indenture or of indentures supplemental hereto pursuant to the provisions
of Section 14.02; or


 


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


 


Section 9.02. Call of
Meetings by Trustee. The Trustee may at any time call a meeting of all
Securityholders of all series that may be affected by the action proposed to be
taken, to take any action specified in Section 9.01, to be held at such
time and at such place in New York, New York or in
                        .
Notice of every meeting of the Securityholders of a series, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Securities of such
series at their addresses as they shall appear on the Register of the Company.
Such notice shall be mailed not less than 20 nor more than 180 days prior to
the date fixed for the meeting.


 


Section 9.03. Call of
Meetings by Company or Securityholders. In case at any time the Company or
the Holders of at least 10% in aggregate principal amount of the Securities of
a series (or of all series, as the case may be) then Outstanding that may be
affected by the action proposed to be taken, shall have requested the Trustee
to call a meeting of Securityholders of such series (or of all series), by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the


 


27

















 


place for such meeting and may call
such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.


 


Section 9.04. Qualifications
for Voting. To be entitled to vote at any meeting of Securityholders, a
Person shall (a) be a Holder of one or more Securities affected by the
action proposed to be taken at the meeting or (b) be a Person appointed by
an instrument in writing as proxy by a Holder of one or more such Securities.
The only Persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 9.05. Regulation of
Meetings.


 


(a) Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
fit.


 


(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 Securityholders as provided
in Section 9.03, in which case the Company or the Securityholders calling
the meeting, as the case may be, shall in like manner appoint a temporary
chair. A permanent chairman and a permanent secretary of the meeting shall be
elected by majority vote of the meeting.


 


(c) At any meeting of
Securityholders of a series, each Securityholder of such series of such
Securityholder’s proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series Outstanding 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 other than by virtue of Securities of such series held by him or
her or instruments in writing as aforesaid duly designating him or her as the
Person to vote on behalf of other Securityholders. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 9.02 or
9.03 the presence of Persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum, and any such meeting may be adjourned from time to time by a majority
of those present, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice. In the absence of a quorum within
30 minutes of 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 determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 9.02
hereof, except that such notice need be given only once and not less than five
days prior to the date on which the meeting is scheduled to be reconvened.


 


Section 9.06. Voting.
The vote upon any resolution submitted to any meeting of Securityholders of a
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 of the 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 in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 9.02. The
record shall show the principal amounts of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.


 


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


 


28

















 


Section 9.07. No Delay of
Rights by Meeting. Nothing contained in this Article IX shall be
deemed or construed to authorize or permit, by reason of any call of a meeting
of Securityholders of any series or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the
Securityholders of such series under any of the provisions of this Indenture or
of the Securities of such series.


 


ARTICLE X


 


REPORTS BY
THE COMPANY AND THE TRUSTEE


AND
SECURITYHOLDERS’ LISTS


 


Section 10.01. Reports by
Trustee.


 


(a) So long as any Securities
are outstanding, the Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided therein.


 


(b) The Trustee shall, at the
time of the transmission to the Holders of Securities of any report pursuant to
the provisions of this Section 10.01, file a copy of such report with each
stock exchange upon which the Securities are listed, if any, and also with the
SEC in respect of a Security listed and registered on a national securities
exchange, if any. The Company agrees to notify the Trustee when, as and if the
Securities become listed on any stock exchange.


 


The Company will reimburse the
Trustee for all expenses incurred in the preparation and transmission of any
report pursuant to the provisions of this Section 10.01 and of
Section 10.02.


 


Section 10.02. Reports by
the Company. The Company shall file with the Trustee and the SEC, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided in the Trust Indenture Act; provided that,
unless available on EDGAR, any such information, documents or reports required
to be filed with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 30 days after the same is
filed with the SEC; and provided further, that the filing of the reports
specified in Section 13 or 15(d) of the Exchange Act by an entity
that is the direct or indirect parent of the Company will satisfy the
requirements of this Section 10.02 so long as such entity is an obligor or
guarantor on the Securities; and provided further that the reports of such
entity will not be required to include condensed consolidating financial
information for the Company in a footnote to the financial statements of such
entity. Notwithstanding the foregoing, the Company shall not be required to
deliver to the Trustee any information or documents (or parts thereof) for
which the Company has requested and received confidential treatment by the SEC.


 


Section 10.03. Securityholders’
Lists. The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:


 


(a) semi-annually, within 15
days after each Record Date, but in any event not less frequently than
semi-annually, a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of Securities to which such Record Date
applies, as of such Record Date, and


 


(b) at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list 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 shall be the Registrar, such lists shall not be required to
be furnished.


 


ARTICLE XI


 


CONCERNING
THE TRUSTEE


 


Section 11.01. Rights of
Trustees; Compensation and Indemnity. The Trustee accepts the trusts
created by this Indenture upon the terms and conditions hereof, including the
following, to all of which the parties hereto and the Holders from time to time
of the Securities agree:


 


(a) The Trustee shall be
entitled to such compensation as the Company and the Trustee shall from time to
time agree in writing for all services rendered by it hereunder (including in
any agent capacity in which it acts). The compensation of the Trustee shall not
be limited by any provision of law in regard to the compensation of a


 


29

















 


trustee of an express trust. The Company
shall reimburse the Trustee promptly upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee (including the reasonable expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct.


 


The Company also agrees to indemnify
each of the Trustee and any predecessor Trustee hereunder for, and to hold it
harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own negligence, bad faith or willful misconduct, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder and the performance of its duties (including in any agent
capacity in which it acts), as well as the costs 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, except those attributable
to its negligence, willful misconduct or bad faith. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have one separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.


 


As security for the performance of
the obligations of the Company under this Section 11.01(a), the Trustee
shall have a lien upon all property and funds held or collected by the Trustee
as such, except funds held in trust by the Trustee to pay principal of and
interest on any Securities. Notwithstanding any provisions of this Indenture to
the contrary, the obligations of the Company to compensate and indemnify the
Trustee under this Section 11.01(a) shall survive the resignation or
removal of the Trustee and any satisfaction and discharge under Article XII.
When the Trustee incurs expenses or renders services after an Event of Default
specified in clause (e) or (f) of Section 7.01 occurs, the
expenses and compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency
or similar laws.


 


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


 


(c) The Trustee shall not be
responsible in any manner whatsoever for the correctness of the recitals herein
or in the Securities (except its certificates of authentication thereon)
contained, all of which are made solely by the Company; and the Trustee shall
not be responsible or accountable in any manner whatsoever for or with respect
to the validity or execution or sufficiency of this Indenture or of the
Securities (except its certificates of authentication thereon), and the Trustee
makes no representation with respect thereto, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Company of any Securities, or the proceeds of any Securities, authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.


 


(d) The Trustee may consult
with counsel of its selection, and, to the extent permitted by Section 11.02,
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by the Trustee hereunder in good
faith and in accordance with such Opinion of Counsel.


 


(e) The Trustee, to the extent
permitted by Section 11.02, may rely upon the certificate of the Secretary
or one of the Assistant Secretaries of the Company as to the adoption of any
Board Resolution or resolution of the stockholders of the Company, and any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by, and 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 may
rely upon, an Officer’s Certificate of the Company (unless other evidence in
respect thereof be herein specifically prescribed).


 


(f) Subject to
Section 11.04, the Trustee or any agent of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would have had if it
were not the Trustee or such agent.


 


(g) 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.


 


30

















 


(h) Any action taken by the
Trustee pursuant to any provision hereof at the request or with the consent of
any Person who at the time is the Holder of any Security shall be conclusive
and binding in respect of such Security upon all future Holders thereof or of
any Security or Securities which may be issued for or in lieu thereof in whole
or in part, whether or not such Security shall have noted thereon the fact that
such request or consent had been made or given.


 


(i) Subject to the provisions
of Section 11.02, the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties.


 


(j) Subject to the provisions
of Section 11.02, the Trustee shall not be under any obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of the Securities, pursuant to any
provision of this Indenture, unless one or more of the Holders of the
Securities shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred by it
therein or thereby.


 


(k) Subject to the provisions
of Section 11.02, the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within its
discretion or within the rights or powers conferred upon it by this Indenture.


 


(l) Subject to the provisions
of Section 11.02, the Trustee shall not be deemed to have knowledge or
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless the Holders of not less than 25%
of the Outstanding Securities notify the Trustee thereof.


 


(m) Subject to the provisions
of the first paragraph of Section 11.02, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
Indebtedness or other paper or document, but the Trustee, may, but shall not be
required to, make further inquiry or investigation into such facts or matters
as it may see fit.


 


(n) 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.


 


Section 11.02. Duties of
Trustee.


 


(a) If one or more of the Events
of Default specified in Section 7.01 with respect to the Securities of any
series shall have happened, then, during the continuance thereof, the Trustee
shall, with respect to such Securities, exercise such of the rights and powers
vested in it by this Indenture, and shall use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


(b) None of the provisions of
this Indenture shall be construed as relieving the Trustee from liability for
its own negligent action, negligent failure to act, or its own willful
misconduct, except that, anything in this Indenture contained to the contrary
notwithstanding,


 


(i) unless
and until an Event of Default specified in Section 7.01 with respect to
the Securities of any series shall have happened which at the time is
continuing,


 


(A) the
Trustee undertakes to perform such duties and only such duties with respect to
the Securities of that series as are specifically set out in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee, whose duties and obligations shall be determined solely by
the express provisions of this Indenture; and


 


(B) the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of bad faith on
the part of the Trustee, upon certificates and opinions furnished to it
pursuant to the express provisions of this Indenture; but in the case of any
such certificates or opinions which, by the provisions of this Indenture, 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


 


31

















 


need not confirm or investigate the
accuracy of mathematical calculations or other facts, statements, opinions or
conclusions stated therein);


 


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


 


(iii) the
Trustee shall not be liable to any Holder of Securities or to any other Person
with respect to any action taken or omitted to be taken by it in good faith, in
accordance with the direction of Securityholders given as provided in
Section 7.06, relating to the time, method and place of conducting any
proceeding for any remedy available to it or exercising any trust or power
conferred upon it by this Indenture.


 


(c) None of the provisions of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise to 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.


 


(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 11.02.


 


Section 11.03. Notice of
Defaults. Within 90 days after the occurrence thereof, and if known to the
Trustee, the Trustee shall give to the Holders of the Securities of a series
notice of each Default or Event of Default with respect to the Securities of
such series known to the Trustee, by transmitting such notice to Holders at
their addresses as the same shall then appear on the Register of the Company,
unless such Default shall have been cured or waived before the giving of such
notice (the term “Default” being hereby defined to be the events specified in
Section 7.01, which are, or after notice or lapse of time or both would
become, Events of Default as defined in said Section). Except in the case of a
Default or Event of Default in payment of the principal of, premium, if any, or
interest on any of the Securities of such series when and as the same shall
become payable, or to make any sinking fund payment as to Securities of the
same series, the Trustee shall be protected in withholding such notice, if and
so long as a Responsible Officer or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Securities of such series.


 


Section 11.04. Eligibility;
Disqualification.


 


(a) The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50 million as set forth in its
most recent published annual report of condition, and shall have a Corporate
Trust Office. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 11.04, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.


 


(b) The Trustee shall comply
with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(i) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(i) are
met. If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. If Section 310(b) of the Trust Indenture Act is amended
any time after the date of this Indenture to change the circumstances under
which a Trustee shall be deemed to have a conflicting interest with respect to
the Securities of any series or to change any of the definitions in connection
therewith, this Section 11.04 shall be automatically amended to
incorporate such changes.


 


Section 11.05. Registration
and Notice; Removal. The Trustee, or any successor to it hereafter
appointed, may at any time resign and be discharged of the trusts hereby
created with respect to any one or more or all series of Securities by giving
to the Company notice in writing. Such resignation shall take effect upon the
appointment of a successor Trustee and the acceptance of such appointment by
such successor Trustee. Any Trustee hereunder may be removed with respect to
any series of Securities at any time by the filing with such Trustee and the
delivery to the Company of an instrument or instruments in writing signed by
the Holders of a majority in principal amount of the Securities of such series
then Outstanding, specifying such removal and the date when it shall become
effective.


 


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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 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 11.04 and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or


 


(3) the Trustee shall become
incapable of acting or shall be adjudged as 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 written notice to the Trustee may remove the
Trustee and appoint a successor Trustee with respect to all Securities, or
(ii) subject to TIA Section 315(e), any Securityholder 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.


 


Upon its resignation or removal, any
Trustee shall be entitled to the payment of reasonable compensation for the
services rendered hereunder by such Trustee and to the payment of all
reasonable expenses incurred hereunder and all moneys then due to it hereunder.
The Trustee’s rights to indemnification provided in Section 11.01(a) shall
survive its resignation or removal.


 


Section 11.06. Successor
Trustee by Appointment.


 


(a) In case at any time the
Trustee shall resign, or shall be removed, or shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or if a receiver of the Trustee or
of its property shall be appointed, or if 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 with respect to the Securities of
one or more series, a successor Trustee 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 series) may be appointed by the Holders of a majority in
principal amount of the Securities of that or those series then Outstanding, by
an instrument or instruments in writing signed in duplicate by such Holders and
filed, one original thereof with the Company and the other with the successor
Trustee; but, until a successor Trustee shall have been so appointed by the
Holders of Securities of that or those series as herein authorized, the Company,
or, in case all or substantially all the assets of the Company shall be in the
possession of one or more custodians or receivers lawfully appointed, or of
trustees in bankruptcy or reorganization proceedings (including a trustee or
trustees appointed under the provisions of the federal bankruptcy laws, as now
or hereafter constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an
instrument in writing, shall appoint a successor Trustee with respect to the
Securities of such series. Subject to the provisions of Sections 11.04 and
11.05, upon the appointment as aforesaid of a successor Trustee with respect to
the Securities of any series, the Trustee with respect to the Securities of
such series shall cease to be Trustee hereunder. After any such appointment
other than by the Holders of Securities of that or those series, the Person
making such appointment shall forthwith cause notice thereof to be mailed to
the Holders of Securities of such series at their addresses as the same shall
then appear on the Register of the Company but any successor Trustee with
respect to the Securities of such series so appointed shall, immediately and
without further act, be superseded by a successor Trustee appointed by the
Holders of Securities of such series in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Company, or by such receivers, trustees or assignees.


 


(b) If any Trustee with respect
to the Securities of one or more series shall resign or be removed and a
successor Trustee shall not have been appointed by the Company or by the
Holders of the Securities of such series or, if any successor Trustee so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee at the expense of the
Company may apply to any court of competent jurisdiction for the appointment of
a successor Trustee. If in any other case a successor Trustee shall not be
appointed pursuant to the foregoing provisions of this Section 11.06
within three months after such appointment might have been made hereunder, the
Holder of any Security of the applicable series or any retiring Trustee at the
expense of the Company may apply to any court of competent jurisdiction to
appoint a successor Trustee. Such court may thereupon, in any such case, after
such notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.


 


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(c) Any successor Trustee
appointed hereunder with respect to the Securities of one or more series shall
execute, acknowledge and deliver to its predecessor Trustee and to the Company,
or to the receivers, trustees, assignees or court appointing it, as the case
may be, an instrument accepting such appointment hereunder, and thereupon such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations with respect to such series of such predecessor Trustee with like
effect as if originally named as Trustee hereunder, and such predecessor
Trustee, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to pay over, and such successor Trustee shall be
entitled to receive, all moneys and properties held by such predecessor Trustee
as Trustee hereunder, subject nevertheless to its lien provided for in Section 11.01(a).
Nevertheless, on the written request of the Company or of the successor Trustee
or of the Holders of at least 10% in principal amount of the Securities of such
series then Outstanding, such predecessor Trustee, upon payment of its said charges
and disbursements, shall execute and deliver an instrument transferring to such
successor Trustee upon the trusts herein expressed all the rights, powers and
trusts of such predecessor Trustee and shall assign, transfer and deliver to
the successor Trustee all moneys and properties held by such predecessor
Trustee, subject nevertheless to its lien provided for in
Section 11.01(a); and, upon request of any such successor Trustee, the
Company shall make, execute, acknowledge and deliver any and all instruments in
writing for more fully and effectually vesting in and confirming to such
successor Trustee all such authority, rights, powers, trusts, immunities,
duties and obligations.


 


Section 11.07. Successor
Trustee by Merger. Any Person into which the Trustee or any successor to it
in the trusts created by this Indenture shall be merged or converted, or any
Person with which it or any successor to it shall be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any Person to which
the Trustee or any successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties hereto; provided
that such Person shall be otherwise qualified and eligible under this Article.
In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture with respect to one or more series of Securities, any
of such Securities shall have been authenticated but not delivered by the
Trustee then in office, any successor to such Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.


 


Section 11.08. Right to Rely
on Officer’s Certificate. Subject to Section 11.02, and subject to the
provisions of Section 16.01 with respect to the certificates required
thereby, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence, bad faith or willful misconduct on the part
of the Trustee, be deemed to be conclusively proved and established by an
Officer’s Certificate with respect thereto delivered to the Trustee, and such
Officer’s Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon reliance thereon.


 


Section 11.09. Appointment
of Authenticating Agent. The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company
to authenticate the Securities, and the Trustee shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by the Authenticating Agent. 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.


 


Each Authenticating Agent shall at
all times be a corporation organized and doing business and in good standing
under the laws of the United States, any State thereof 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 authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the


 


34

















 


purposes of this Article XI,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Article XI, it shall
resign immediately in the manner and with the effect specified in this Article XI.


 


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 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 Article XI, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent. An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof 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 11.09, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. 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. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 11.09.


 


The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section 11.09, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 11.01.


 


Section 11.10. Communications
by Securityholders with Other Securityholders. Holders of Securities may
communicate pursuant to Section 312(b) of the Trust Indenture Act
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act with
respect to such communications.


 


ARTICLE XII


 


SATISFACTION
AND DISCHARGE; DEFEASANCE


 


Section 12.01. Applicability
of Article. If, pursuant to Section 3.01, provision is made for the
defeasance of Securities of a series and if the Securities of such series are
denominated and payable only in U.S. Dollars (except as provided pursuant to
Section 3.01), then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for
Securities of such series. Defeasance provisions, if any, for Securities
denominated in a Foreign Currency may be specified pursuant to
Section 3.01.


 


Section 12.02. Satisfaction
and Discharge of Indenture. This Indenture, with respect to the Securities
of any series (if all series issued under this Indenture are not to be
affected), shall, upon Company Order, cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such
Securities herein expressly provided for and rights to receive payments of
principal of and premium, if any, and interest on such Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when,


 


(a) either:


 


(i) all
Securities of such series theretofore authenticated and delivered (other than
(A) Securities that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 3.07 and (B) Securities for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 6.03) have been delivered to the
Trustee for cancellation; or


 


(ii) all
Securities of such series not theretofore delivered to the Trustee for
cancellation,


 


(A) have
become due and payable, or


 


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


 


35

















 


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


 


and in the case of (A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee or
Paying Agent as trust funds in trust for the purpose an amount in the Currency
in which such Securities are denominated (except as otherwise provided pursuant
to Section 3.01) sufficient to pay and discharge the entire Indebtedness
on such Securities for principal and premium, if any, and interest to the date
of such deposit (in the case of Securities that have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under federal bankruptcy laws, as
now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is required to return
the moneys then on deposit with the Trustee to the Company, the obligations of
the Company under this Indenture with respect to such Securities shall not be
deemed terminated or discharged;


 


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


 


(c) the Company has delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to such series have been complied
with. Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 11.01 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (a)(i) of this Section, the obligations of the Trustee under
Section 12.06 and the last paragraph of Section 6.03(e) shall
survive.


 


Section 12.03. Defeasance
upon Deposit of Moneys or U.S Government Obligations. At the Company’s
option, either (a) the Company shall be deemed to have been Discharged (as
defined below) from its obligations with respect to Securities of any series on
the first day after the applicable conditions set forth below have been
satisfied or (b) the Company shall cease to be under any obligation to
comply with any term, provision or condition set forth in Section 6.04
with respect to Securities of any series (and, if so specified pursuant to
Section 3.01, any other restrictive covenant added for the benefit of such
series pursuant to Section 3.01) at any time after the applicable
conditions set forth below have been satisfied:


 


(a) The Company shall have
deposited or caused to be deposited irrevocably with the Trustee as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series money in an amount, or
(ii) U.S. Government Obligations (as defined below) that through the
payment of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii),
sufficient to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments of
interest or principal and premium are due;


 


(b) No Default with respect to
the Securities of such series shall have occurred and be continuing on the date
of such deposit (other than a Default resulting from the borrowing of funds and
the grant of any related liens to be applied to such deposit); and


 


(c) The Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that Holders of
the Securities of such series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the Company’s exercise of its option
under this Section and will be subject to federal income tax on the same
amounts and in the same manner and at the same times as would have been the
case if such action had not been exercised and, in the case of the Securities
of such series being Discharged accompanied by a ruling to that effect received
from or published by the Internal Revenue Service.


 


“Discharged” means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by,
and obligations under, the Securities of such series and to have satisfied all
the obligations under this Indenture relating to the Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except the rights of Holders of Securities
of such series to receive, from the trust fund described in clause (a) above,
payment of the principal of and premium, if any, and interest on such
Securities when such payments are due, the Company’s obligations with respect
to Securities of such series under Sections 3.04, 3.06, 3.07, 6.02 and 12.06
and (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.


 


36
















 


“U.S. Government Obligations” means
securities that are (i) direct obligations of the United States for the
payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States the timely of payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, that, in
either case under clauses (i) or (ii) are not callable or redeemable
at the action of the issuer thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depositary 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depositary receipt.


 


Section 12.04. Repayment to
Company. The Trustee and any Paying Agent shall promptly pay to the Company
(or to its designee) upon Company Order any excess moneys or U.S. Government
Obligations held by them at any time. The provisions of the last paragraph of
Section 6.03 shall apply to any money held by the Trustee or any Paying
Agent under this Article that remains unclaimed for two years after the
Maturity of any series of Securities for which money or U.S. Government
Obligations have been deposited pursuant to Section 12.03.


 


Section 12.05. Section 12.05
Indemnity for U.S Government Obligations. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the deposited U.S. Government Obligations or the principal or
interest received on such U.S. Government Obligations.


 


Section 12.06. Section 12.06
Application of Trust Money.


 


(a) Subject to any applicable
abandoned property law, neither the Trustee nor any other Paying Agent shall be
required to pay interest on any moneys deposited pursuant to the provisions of
this Indenture, except such as it shall agree with the Company in writing to
pay thereon. Any moneys so deposited for the payment of the principal of, or
premium, if any, or interest on the Securities of any series and remaining
unclaimed for two years after the date of the maturity of the Securities of
such series or the date fixed for the redemption of all the Securities of such
series at the time outstanding, as the case may be, shall be repaid by the
Trustee or such other paying agent to the Company upon its written request and
thereafter, anything in this Indenture to the contrary notwithstanding, any
rights of the Holders of Securities of such series in respect of which such
moneys shall have been deposited shall be enforceable only against the Company,
and all liability of the Trustee or such other paying agent with respect to
such moneys shall thereafter cease.


 


(b) Subject to the provisions of the
foregoing paragraph, any moneys which at any time shall be deposited by the
Company or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of, premium, if any, and interest on any of the
Securities shall be and are hereby assigned, transferred and set over to the
Trustee or such other paying agent in trust for the respective Holders of the
Securities for the purpose for which such moneys shall have been deposited; but
such moneys need not be segregated from other funds except to the extent
required by law.


 


Section 12.07. Deposits of
Non-U.S. Currencies. Notwithstanding the foregoing provisions of this
Article, if the Securities of any series are payable in a Currency other than
U.S. Dollars, the Currency or the nature of the government obligations to be
deposited with the Trustee or paying agent under the foregoing provisions of
this Article shall be as set forth in the Officer’s Certificate or established
in the supplemental indenture under which the Securities of such series are
issued.


 


ARTICLE XIII


 


IMMUNITY OF
CERTAIN PERSONS


 


Section 13.01. No Personal
Liability. No recourse shall be had for the payment of the principal of, or
the premium, if any, or interest on, any Security or for any claim based
thereon or otherwise in respect thereof or of the Indebtedness represented
thereby, or upon any obligation, covenant or agreement of this Indenture,
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and the Securities are solely corporate
obligations, and


 


37

















 


that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, because of the incurring of the Indebtedness hereby authorized or
under or by reason of any of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Securities, or to be implied
herefrom or therefrom, and that all liability, if any, of that character
against every such incorporator, stockholder, officer and director is, by the
acceptance of the Securities and as a condition of, and as part of the consideration
for, the execution of this Indenture and the issue of the Securities, expressly
waived and released.


 


ARTICLE XIV


 


SUPPLEMENTAL
INDENTURES


 


Section 14.01. Section 14.01
Without Consent of Securityholders. Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, the
Company 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 one or more of or all the following purposes:


 


(a) to add to the covenants and
agreements of the Company, to be observed thereafter and during the period, if
any, in such supplemental indenture or indentures expressed, and to add Events
of Default, in each case for the protection or benefit of the Holders of all or
any series of the Securities (and if such covenants, agreements and Events of
Default are to be for the benefit of fewer than all series of Securities,
stating that such covenants, agreements and Events of Default are expressly
being included for the benefit of such series as shall be identified therein),
or to surrender any right or power herein conferred upon the Company;


 


(b) to delete or modify any Events
of Default with respect to all or any series of the Securities, the form and
terms of which are being established pursuant to such supplemental indenture as
permitted in Section 3.01 (and, if any such Event of Default is applicable
to fewer than all such series of the Securities, specifying the series to which
such Event of Default is applicable), and to specify the rights and remedies of
the Trustee and the Holders of such Securities in connection therewith;


 


(c) to add to or change any of the
provisions of this Indenture to provide, change or eliminate any restrictions
on the payment of principal of or premium, if any, on Securities; provided that
any such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect;


 


(d) 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 Outstanding Security of any series
created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision and as to which such supplemental indenture
would apply;


 


(e) to evidence the succession of
another corporation to the Company, or successive successions, and the
assumption by such successor of the covenants and obligations of the Company
contained in the Securities of one or more series and in this Indenture or any
supplemental indenture;


 


(f) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to one
or more series of Securities and to add to or change any of the provisions of
this Indenture as shall be necessary for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 11.06(c);


 


(g) to secure any series of
Securities;


 


(h) to evidence any changes to this
Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as permitted by the
terms thereof;


 


(i) to cure or reform any ambiguity
mistake, manifest error, omission, defect or inconsistency, or to conform the
text of any provision herein or in any indenture supplemental hereto to any
description thereof in the applicable section of a prospectus, prospectus
supplement or other offering document that was intended to be a verbatim
recitation of a provision of this Indenture of any indenture supplemental
hereto;


 


(j) to add to or change or eliminate
any provision of this Indenture as shall be necessary or desirable in
accordance with any amendments to the Trust Indenture Act;


 


38

















 


(k) to add guarantors or co-obligors
with respect to any series of Securities;


 


(l) to make any change in any series
of Securities that does not adversely affect in any material respect the
interests of the Holders of such Securities;


 


(m) to provide for uncertificated
securities in addition to certificated securities;


 


(n) 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; provided
that any such action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities;


 


(o) to prohibit the authentication
and delivery of additional series of Securities; or


 


(p) to establish the form and terms
of Securities of any series as permitted in Section 3.01, or to authorize
the issuance of additional Securities of a series previously authorized or to
add to the conditions, limitations or restrictions on the authorized amount,
terms or purposes of issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations or restrictions
thereafter to be observed.


 


Subject to the provisions of
Section 14.03, the Trustee is authorized to join with the Company in the execution
of any such supplemental indenture, to make the further agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property or assets thereunder.


 


Any supplemental indenture
authorized by the provisions of this Section 14.01 may be executed by the
Company and the Trustee without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 14.02.


 


Section 14.02. With Consent
of Securityholders; Limitations.


 


(a) With the consent of the Holders
(evidenced as provided in Article VIII) of at least a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture voting separately, the Company and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any provisions of this Indenture or of modifying in
any manner the rights of the Holders of the Securities of such series to be
affected; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security of each such series
affected thereby,


 


(i) extend
the Stated Maturity of the principal of, or any installment of interest on, any
Security, or reduce the principal amount thereof or the interest thereon or any
premium payable upon redemption thereof, or extend the Stated Maturity of, or
change the Currency in which the principal of and premium, if any, or interest
on such Security is denominated or payable, 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 7.02, or impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or materially adversely affect
the economic terms of any right to convert or exchange any Security as may be
provided pursuant to Section 3.01; or


 


(ii)
reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain Defaults
hereunder and their consequences provided for in this Indenture; or


 


(iii)
modify any of the provisions of this Section, Section 6.06 or
Section 7.06, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each 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 and Section 6.06, or the deletion of
this proviso, in accordance with the requirements of Sections 11.06 and
14.01(f); or


 


(iv)
modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.


 


(b) A supplemental indenture that
changes or eliminates any 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


 


39

















 


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.


 


(c) It shall not be necessary for
the consent of the Securityholders under this Section 14.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.


 


(d) The Company may set a record
date for purposes of determining the identity of the Holders of each series of
Securities entitled to give a written consent or waive compliance by the
Company as authorized or permitted by this Section. Such record date shall not
be more than 30 days prior to the first solicitation of such consent or waiver
or the date of the most recent list of Holders furnished to the Trustee prior
to such solicitation pursuant to Section 312 of the Trust Indenture Act.


 


(e) Promptly after the execution by
the Company and the Trustee of any supplemental indenture pursuant to the
provisions of this Section 14.02, the Company shall mail a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Holders of Securities at their addresses as the same shall then appear in the
Register of the Company. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.


 


Section 14.03. Trustee
Protected. Upon the request of the Company, accompanied by the Officer’s
Certificate and Opinion of Counsel required by Section 16.01 stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture, and evidence reasonably satisfactory to the Trustee of consent of
the Holders if the supplemental indenture is to be executed pursuant to
Section 14.02, the Trustee shall join with the Company in the execution of
said supplemental indenture unless said supplemental indenture affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into said supplemental indenture. The Trustee shall be fully protected in
relying upon such Officer’s Certificate and an Opinion of Counsel.


 


Section 14.04. Effect of
Execution of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article XIV, this Indenture shall
be deemed to be modified and amended in accordance therewith and, except as
herein otherwise expressly provided, the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of all of the Securities or of the Securities of
any series affected, as the case may be, shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.


 


Section 14.05. Notation on
or Exchange of Securities. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article may bear a notation in the form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Securities then
Outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the Holders of the Securities.


 


Section 14.06. Conformity
with TIA. Every supplemental indenture executed pursuant to the provisions
of this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.


 


ARTICLE XV


 


SUBORDINATION
OF SECURITIES


 


Section 15.01. Agreement to
Subordinate. In the event a series of Securities is designated as
subordinated pursuant to Section 3.01, and except as otherwise provided in
a Company Order or in one or more indentures supplemental hereto, the Company,
for itself, its successors and assigns, covenants and agrees, and each Holder
of Securities of such series by his, her or its acceptance thereof, likewise covenants
and agrees, that the payment of the principal of (and premium, if any) and
interest, if any, on each and all of the Securities of such series is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment


 


40

















 


in full of all Senior Indebtedness.
In the event a series of Securities is not designated as subordinated pursuant
to Section 3.01(s), this Article XV shall have no effect upon the
Securities.


 


Section 15.02. Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Subject to Section 15.01, upon any distribution of assets of the Company
upon any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings
or upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company or otherwise (subject to the power of
a court of competent jurisdiction to make other equitable provision reflecting
the rights conferred in this Indenture upon the Senior Indebtedness and the
holders thereof with respect to the Securities and the holders thereof by a
lawful plan of reorganization under applicable bankruptcy law):


 


(a) the holders of all Senior
Indebtedness shall be entitled to receive payment in full of the principal
thereof (and premium, if any) and interest due thereon before the Holders of
the Securities are entitled to receive any payment upon the principal (or
premium, if any) or interest, if any, on Indebtedness evidenced by the
Securities; and


 


(b) any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XV shall be paid by the
liquidation trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any) and
interest 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; and


 


(c) in the event that,
notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities
prohibited by the foregoing, shall be received by the Trustee or the Holders of
the Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over, upon written notice to a Responsible Officer
of the Trustee, to the holder of such Senior Indebtedness or his, her or its
representative or representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, as calculated by the Company, for
application to payment of all Senior Indebtedness remaining unpaid until all
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.


 


(d) Subject to the payment in full
of all Senior Indebtedness, the Holders of the Securities shall be subrogated
to the rights of the holders of Senior Indebtedness (to the extent that
distributions otherwise payable to such Holder have been applied to the payment
of Senior Indebtedness) to receive payments or distributions of cash, property
or securities of the Company applicable to Senior Indebtedness until the
principal of (and premium, if any) and interest, if any, on the Securities
shall be paid in full and no such payments or distributions to the Holders of
the Securities of cash, property or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities be deemed to be a payment by the Company to or on account of the
Securities. It is understood that the provisions of this Article XV 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 the Senior Indebtedness,
on the other hand. Nothing contained in this Article XV or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is
unconditional and absolute, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest, if any, on the Securities as
and when the same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall
anything herein or in the Securities 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 XV of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this
Article XV, the Trustee, subject to the provisions of Section 15.05, shall
be entitled to conclusively rely upon a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee for the purpose
of ascertaining the Persons entitled to


 


41

















 


participate in such distribution,
the holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereof and all other facts pertinent thereto or to this Article XV.


 


Section 15.03. No Payment on
Securities in Event of Default on Senior Indebtedness. Subject to
Section 15.01, no payment by the Company on account of principal (or
premium, if any), sinking funds or interest, if any, on the Securities shall be
made at anytime if: (i) a default on Senior Indebtedness exists that
permits the holders of such Senior Indebtedness to accelerate its maturity and
(ii) the default is the subject of judicial proceedings or the Company has
received notice of such default. The Company may resume payments on the
Securities when full payment of amounts then due for principal (premium, if
any), sinking funds and interest on Senior Indebtedness has been made or duly
provided for in money or other immediately available funds.


 


In the event that, notwithstanding
the foregoing, any payment shall be received by the Trustee when such payment
is prohibited by the preceding paragraph of this Section 15.03, such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, but only to the extent that
the holders of such Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.


 


Section 15.04. Payments on
Securities Permitted. Subject to Section 15.01, nothing contained in
this Indenture or in any of the Securities shall (a) affect the obligation
of the Company to make, or prevent the Company from making, at any time except
as provided in Sections 15.02 and 15.03, payments of principal of (or premium,
if any) or interest, if any, on the Securities or (b) prevent the
application by the Trustee of any moneys or assets deposited with it hereunder
to the payment of or on account of the principal of (or premium, if any) or
interest, if any, on the Securities, unless a Responsible Officer of the
Trustee shall have received at its Corporate Trust Office written notice of any
fact prohibiting the making of such payment from the Company or from the holder
of any Senior Indebtedness or from the trustee for any such holder, together
with proof satisfactory to the Trustee of such holding of Senior Indebtedness
or of the authority of such trustee more than two Business Days prior to the
date fixed for such payment.


 


Section 15.05. Authorization
of Securityholders to Trustee to Effect Subordination. Subject to
Section 15.01, each Holder of Securities by his acceptance thereof
authorizes and directs the Trustee on his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article XV and appoints the Trustee his attorney-in-fact for
any and all such purposes.


 


Section 15.06. Notices to
Trustee. The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies or assets to or by the Trustee in respect of
the Securities of any series pursuant to the provisions of this Article XV.
Subject to Section 15.01, notwithstanding the provisions of this Article
XV or any other provisions of this Indenture, neither the Trustee nor any
Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Indebtedness or of any fact which would prohibit the
making of any payment of moneys or assets to or by the Trustee or such Paying
Agent, unless and until a Responsible Officer of the Trustee or such Paying
Agent shall have received (in the case of a Responsible Officer of the Trustee,
at the Corporate Trust Office of the Trustee) written notice thereof from the
Company or from the holder of any Senior Indebtedness from the trustee for any
such holder, together with proof satisfactory to the Trustee of such holding of
Senior Indebtedness or of the authority of such trustee and, prior to the
receipt of any such written notice, the Trustee shall be entitled in all
respects conclusively to presume that no such facts exist; provided, however,
that if at least two Business Days prior to the date upon which by the terms
hereof any such moneys or assets may become payable for any purpose (including,
without limitation, the payment of either the principal (or premium, if any) or
interest, if any, on any Security) a Responsible Officer of the Trustee shall
not have received with respect to such moneys or assets the notice provided for
in this Section 15.06, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such moneys or assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date. 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 trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In the


 


42

















 


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 XV, 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 XV 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 15.07. Trustee as
Holder of Senior Indebtedness. Subject to Section 15.01, the Trustee
in its individual capacity shall be entitled to all the rights set forth in
this Article XV in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder. Nothing in this Article XV shall apply to claims of, or payments
to, the Trustee under or pursuant to Sections 7.05 or 11.01.


 


Section 15.08. Modifications
of Terms of Senior Indebtedness. Subject to Section 15.01, any renewal
or extension of the time of payment of any Senior Indebtedness or the exercise
by the holders of Senior Indebtedness of any of their rights under any
instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee. No
compromise, alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any liability or
obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article XV or of the
Securities relating to the subordination thereof.


 


Section 15.09. Reliance on
Judicial Order or Certificate of Liquidating Agent. Subject to
Section 15.01, upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee and the Holders of the Securities
shall be entitled to conclusively rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, 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 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 XV.


 


Section 15.10. Satisfaction
and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01,
amounts and U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Article XII and not, at the time of such
deposit, prohibited to be deposited under Sections 15.02 or 15.03 shall not be
subject to this Article XV.


 


Section 15.11. Section 15.11
Trustee Not Fiduciary for Holders of Senior Indebtedness . With respect to
the holders of Senior Indebtedness, the Trustee undertakes to perform or
observe only such of its covenants and obligations as are specifically set
forth in this Article XV, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company, or any other Person, moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.


 


ARTICLE XVI


 


MISCELLANEOUS
PROVISIONS


 


Section 16.01. Section 16.01
Certificates and Opinions as to Conditions Precedent.


 


(a) Upon any request or application
by the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been


 


43

















 


complied with, except that in the
case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.


 


(b) Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificates provided pursuant to Section 6.05 of this Indenture)
shall include (i) a statement that the Person giving such certificate or
opinion has read such covenant or condition; (ii) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the view or opinion of such Person, he or she
has made such examination or investigation as is necessary to enable such
Person to express an informed view or opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to
whether or not, in the view or opinion of such Person, such condition or
covenant has been complied with.


 


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


 


(d) Any certificate, statement or
opinion of an officer of the Company or of counsel to the Company may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of,
or representations by, an accountant or firm of accountants, unless such
officer or counsel, as the case may be, knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based are erroneous. Any certificate or opinion of any firm
of independent registered public accountants filed with the Trustee shall
contain a statement that such firm is independent.


 


(e) 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.


 


(f) 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 16.02. Trust
Indenture Act Controls. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or another
provision included in this Indenture which is required to be included in this
Indenture by any of the provisions of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such imposed duties or incorporated provision shall
control.


 


Section 16.03. Notices to
the Company and Trustee. Any notice or demand authorized by this Indenture
to be made upon, given or furnished to, or filed with, the Company or the
Trustee shall be sufficiently made, given, furnished or filed for all purposes
if it shall be mailed, delivered or telefaxed to:


 


(a) the Company, at 700 Pennsylvania
Drive, Exton PA 19341, Attention: Chief Executive Officer, Facsimile No.:
(484) 595-1582, or at such other address or facsimile number as may have
been furnished in writing to the Trustee by the Company.


 


(b) the Trustee, at the Corporate
Trust Office of the Trustee, Attention: Trust Administrator.


 


Any such notice, demand or other
document shall be in the English language.


 


Section 16.04. Notices to
Securityholders; Waiver. Any notice required or permitted to be given to
Securityholders shall be sufficiently given (unless otherwise herein expressly
provided),


 


44

















 


(a) if to Holders, if given in
writing by first class mail, postage prepaid, to such Holders at their
addresses as the same shall appear on the Register of the Company.


 


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


 


(c) Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance on such waiver. In any case
where notice to Holders 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, and any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In any case where notice to Holders is given
by publication, any defect in any notice so published as to any particular
Holder shall not affect the sufficiency of such notice with respect to other
Holders, and any notice that is published in the manner herein provided shall
be conclusively presumed to have been duly given.


 


Section 16.05. Legal Holiday.
Unless otherwise specified pursuant to Section 3.01, in any case where any
Interest Payment Date, Redemption Date or Maturity of any Security of any
series shall not be a Business Day at any Place of Payment for the Securities
of that series, then payment of principal and premium, if any, or interest need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on such Interest Payment Date, Redemption Date or Maturity and no
interest shall accrue on such payment for the period from and after such
Interest Payment Date, Redemption Date or Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.


 


Section 16.06. Effects of
Headings and Table of Contents. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.


 


Section 16.07. Successors
and Assigns. All covenants and agreements in this Indenture by the parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.


 


Section 16.08. Separability
Clause. In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


Section 16.09. Benefits of
Indenture. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed,
to confer upon, or to give to, any Person or corporation other than the parties
hereto and their successors and the Holders of the Securities any benefit or
any right, remedy or claim under or by reason of this Indenture or any
covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements in this Indenture
contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the Holders of the Securities.


 


Section 16.10. Counterparts
Originals. 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 instrument.


 


Section 16.11. Governing
Law; Waiver of Trial by Jury. This Indenture and the Securities shall be
deemed to be contracts made under the law of the State of New York and for all
purposes shall be governed by and construed in accordance with the law of said
State.


 


EACH PARTY HERETO, AND EACH HOLDER OF
A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INDENTURE.


 


[signature page follows]


 


45

















 


IN WITNESS WHEREOF, the parties have
caused this Indenture to be duly executed as of the date first written above.


 


	
   

  	
   

  	
  MERIT MEDICAL SYSTEMS, INC.,

  
	
   

  	
   

  	
  as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  ,

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


46

















 


CROSS-REFERENCE
TABLE (1)


 


Section of Trust Indenture Act of
1939, as Amended Section of Indenture


 


	
  310(a)

  	
   

  	
  11.04(a)

  
	
  310(b)

  	
   

  	
  11.04(b)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  11.01(f)

  
	
  311(b)

  	
   

  	
  11.01(f)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  10.03(a)

  10.03(b)

  
	
  312(b)

  	
   

  	
  11.10

  
	
  312(c)

  	
   

  	
  11.10

  
	
  313(a)

  	
   

  	
  10.01(a)

  
	
  313(b)

  	
   

  	
  10.01(a)

  
	
  313(c)

  	
   

  	
  10.01(a)

  
	
  313(d)

  	
   

  	
  10.01(b)

  
	
  314(a)

  	
   

  	
  6.05

  10.02

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  16.01(a)

  16.01(d)

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  16.01(b)

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  11.02(b)

  
	
  315(b)

  	
   

  	
  11.03

  
	
  315(c)

  	
   

  	
  11.02(a)

  
	
  315(d)

  	
   

  	
  11.02(b)(i)  

  11.02(b)(ii)

  
	
  315(e)

  	
   

  	
  7.08

  
	
  316(a)

  	
   

  	
  7.06

  
	
  316(b)

  	
   

  	
  7.07

  
	
  316(c)

  	
   

  	
  8.02(e)

  
	
  317(a)

  	
   

  	
  7.03

  
	
  317(b)

  	
   

  	
  6.03

  
	
  318(a)

  	
   

  	
  16.02

  



 






	
  (1)

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

  



 


47