Exhibit 4.3


 


GENERAL MOLY, INC.


 


DEBT SECURITIES INDENTURE


 


Dated as of
                    ,
20


 


The Bank of New York Mellon Trust
Company, N.A.,


 


as


 


Trustee


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
  2

  
	
  Section 1.1

  	
  Definitions

  	
  2

  
	
  Section 1.2

  	
  Other Definitions

  	
  7

  
	
  Section 1.3

  	
  Incorporation by Reference of Trust Indenture Act

  	
  7

  
	
  Section 1.4

  	
  Rules of Construction

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE SECURITIES

  	
  8

  
	
  Section 2.1

  	
  Issuable in Series

  	
  8

  
	
  Section 2.2

  	
  Establishment of Terms of Series of Securities

  	
  8

  
	
  Section 2.3

  	
  Execution and Authentication

  	
  11

  
	
  Section 2.4

  	
  Registrar and Paying Agent

  	
  12

  
	
  Section 2.5

  	
  Paying Agent to Hold Money in Trust

  	
  13

  
	
  Section 2.6

  	
  Securityholder Lists

  	
  14

  
	
  Section 2.7

  	
  Exchange and Registration of Transfer

  	
  14

  
	
  Section 2.8

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  15

  
	
  Section 2.9

  	
  Outstanding Securities

  	
  16

  
	
  Section 2.10

  	
  Treasury Securities

  	
  16

  
	
  Section 2.11

  	
  Temporary Securities

  	
  17

  
	
  Section 2.12

  	
  Cancellation

  	
  17

  
	
  Section 2.13

  	
  Defaulted Interest

  	
  17

  
	
  Section 2.14

  	
  Registered Global Securities

  	
  18

  
	
  Section 2.15

  	
  Computation of Interest

  	
  19

  
	
  Section 2.16

  	
  CUSIP and ISIN Numbers

  	
  19

  
	
  Section 2.17

  	
  Transfers, etc.

  	
  19

  
	
  Section 2.18

  	
  Global Securities

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 REDEMPTION

  	
  19

  
	
  Section 3.1

  	
  Notice to Trustee

  	
  19

  
	
  Section 3.2

  	
  Selection of Securities to be Redeemed

  	
  20

  
	
  Section 3.3

  	
  Notice of Redemption

  	
  20

  
	
  Section 3.4

  	
  Effect of Notice of Redemption

  	
  21

  
	
  Section 3.5

  	
  Deposit of Redemption Price

  	
  21

  
	
  Section 3.6

  	
  Securities Redeemed in Part

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 COVENANTS

  	
  21

  
	
  Section 4.1

  	
  Payment of Principal and Interest

  	
  21

  
	
  Section 4.2

  	
  SEC Reports

  	
  21

  
	
  Section 4.3

  	
  Compliance Certificate

  	
  22

  
	
  Section 4.4

  	
  Stay, Extension and Usury Laws

  	
  22

  
	
  Section 4.5

  	
  Corporate Existence

  	
  22

  
	
  Section 4.6

  	
  Maintenance of Office or Agency

  	
  22

  
	
  Section 4.7

  	
  Money For Securities Payments to be Held in Trust

  	
  23

  



 


i

















 


	
  Section 4.8

  	
  Waiver of Certain Covenants

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 SUCCESSORS

  	
  24

  
	
  Section 5.1

  	
  When Company May Merge, Etc.

  	
  24

  
	
  Section 5.2

  	
  Successor Corporation Substituted

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 DEFAULTS AND
  REMEDIES

  	
  25

  
	
  Section 6.1

  	
  Events of Default

  	
  25

  
	
  Section 6.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  26

  
	
  Section 6.3

  	
  Collection of Indebtedness and Suits for Enforcement by
  Trustee

  	
  28

  
	
  Section 6.4

  	
  Trustee May File Proofs of Claim

  	
  29

  
	
  Section 6.5

  	
  Trustee May Enforce Claims Without Possession of
  Securities

  	
  30

  
	
  Section 6.6

  	
  Application of Money Collected

  	
  30

  
	
  Section 6.7

  	
  Limitation on Suits

  	
  30

  
	
  Section 6.8

  	
  Unconditional Right of Holders to Receive Principal and
  Interest

  	
  31

  
	
  Section 6.9

  	
  Restoration of Rights and Remedies

  	
  31

  
	
  Section 6.10

  	
  Rights and Remedies Cumulative

  	
  31

  
	
  Section 6.11

  	
  Delay or Omission Not Waiver

  	
  31

  
	
  Section 6.12

  	
  Control by Holders

  	
  32

  
	
  Section 6.13

  	
  Waiver of Past Defaults

  	
  32

  
	
  Section 6.14

  	
  Undertaking for Costs

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 TRUSTEE

  	
  33

  
	
  Section 7.1

  	
  Duties of Trustee

  	
  33

  
	
  Section 7.2

  	
  Rights of Trustee

  	
  34

  
	
  Section 7.3

  	
  Individual Rights of Trustee

  	
  35

  
	
  Section 7.4

  	
  Trustee’s Disclaimer

  	
  35

  
	
  Section 7.5

  	
  Notice of Defaults

  	
  36

  
	
  Section 7.6

  	
  Reports by Trustee to Holders

  	
  36

  
	
  Section 7.7

  	
  Compensation and Indemnity

  	
  36

  
	
  Section 7.8

  	
  Replacement of Trustee

  	
  37

  
	
  Section 7.9

  	
  Successor Trustee by Merger, etc.

  	
  38

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
  38

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against Company

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 SATISFACTION AND
  DISCHARGE; DEFEASANCE

  	
  39

  
	
  Section 8.1

  	
  Satisfaction and Discharge of Indenture

  	
  39

  
	
  Section 8.2

  	
  Application of Trust Funds; Indemnification

  	
  40

  
	
  Section 8.3

  	
  Legal Defeasance of Securities of any Series

  	
  40

  
	
  Section 8.4

  	
  Covenant Defeasance

  	
  42

  
	
  Section 8.5

  	
  Repayment to Company

  	
  43

  
	
  Section 8.6

  	
  Effect of Subordination Provisions

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 AMENDMENTS AND
  WAIVERS

  	
  43

  
	
  Section 9.1

  	
  Without Consent of Holders

  	
  43

  
	
  Section 9.2

  	
  With Consent of Holders

  	
  44

  
	
  Section 9.3

  	
  Limitations

  	
  45

  



 


ii

















 


	
  Section 9.4

  	
  Compliance with Trust Indenture Act

  	
  46

  
	
  Section 9.5

  	
  Revocation and Effect of Consents

  	
  46

  
	
  Section 9.6

  	
  Notation on or Exchange of Securities

  	
  46

  
	
  Section 9.7

  	
  Trustee Protected

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 SUBORDINATION OF
  SECURITIES

  	
  47

  
	
  Section 10.1

  	
  Agreement to Subordinate

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 MISCELLANEOUS

  	
  47

  
	
  Section 11.1

  	
  Trust Indenture Act Controls

  	
  47

  
	
  Section 11.2

  	
  Notices

  	
  47

  
	
  Section 11.3

  	
  Communication by Holders with Other Holders

  	
  48

  
	
  Section 11.4

  	
  Certificate and Opinion as to Conditions Precedent

  	
  49

  
	
  Section 11.5

  	
  Statements Required in Certificate or Opinion

  	
  49

  
	
  Section 11.6

  	
  Rules by Trustee and Agents

  	
  49

  
	
  Section 11.7

  	
  Legal Holidays

  	
  49

  
	
  Section 11.8

  	
  No Recourse Against Others

  	
  50

  
	
  Section 11.9

  	
  Counterparts

  	
  50

  
	
  Section 11.10

  	
  Governing Laws; Waiver of Jury Trial

  	
  50

  
	
  Section 11.11

  	
  No Adverse Interpretation of Other Agreements

  	
  50

  
	
  Section 11.12

  	
  Successors

  	
  50

  
	
  Section 11.13

  	
  Severability

  	
  51

  
	
  Section 11.14

  	
  Table of Contents, Headings, Etc.

  	
  51

  
	
  Section 11.15

  	
  Securities in a Foreign Currency or in ECU

  	
  51

  
	
  Section 11.16

  	
  Judgment Currency

  	
  52

  
	
  Section 11.17

  	
  Acts of Holders

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 SINKING FUNDS

  	
  53

  
	
  Section 12.1

  	
  Applicability of Article

  	
  53

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  54

  
	
  Section 12.3

  	
  Redemption of Securities for Sinking Fund

  	
  54

  



 


iii






 


 












 


GENERAL
MOLY, INC.


 


Reconciliation
and tie between Trust Indenture Act of 1939 and Indenture, dated as of
[            ].


 


	
  §
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not
  Applicable

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  §
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  Not
  Applicable

  
	
  §
  312(a)

  	
   

  	
  2.6

  
	
  (b)

  	
   

  	
  11.3

  
	
  (c)

  	
   

  	
  11.3

  
	
  §
  313(a)

  	
   

  	
  7.6

  
	
  (b)(1)

  	
   

  	
  7.6

  
	
  (b)(2)

  	
   

  	
  7.6

  
	
  (c)

  	
   

  	
  7.6

  
	
  (d)

  	
   

  	
  7.6

  
	
  §
  314(a)

  	
   

  	
  4.2,
  4.3

  
	
  (b)

  	
   

  	
  Not
  Applicable

  
	
  (c)(1)

  	
   

  	
  11.4

  
	
  (c)(2)

  	
   

  	
  11.4

  
	
  (c)(3)

  	
   

  	
  Not
  Applicable

  
	
  (d)

  	
   

  	
  Not
  Applicable

  
	
  (e)

  	
   

  	
  11.5

  
	
  (f)

  	
   

  	
  Not
  Applicable

  
	
  §
  315(a)

  	
   

  	
  7.1

  
	
  (b)

  	
   

  	
  7.5

  
	
  (c)

  	
   

  	
  7.1

  
	
  (d)

  	
   

  	
  7.1

  
	
  (e)

  	
   

  	
  6.14

  
	
  §
  316(a)

  	
   

  	
  2.10

  
	
  (a)(1)(A)

  	
   

  	
  6.12

  
	
  (a)(1)(B)

  	
   

  	
  6.13

  
	
  (b)

  	
   

  	
  6.8

  
	
  §
  317(a)(1)

  	
   

  	
  6.3

  
	
  (a)(2)

  	
   

  	
  6.4

  
	
  (b)

  	
   

  	
  2.5

  
	
  §
  318(a)

  	
   

  	
  11.1

  



 


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


 


1

















 


Indenture
dated as of
[            ],
between General Moly, Inc., a Delaware corporation (the “Company”), and
The Bank of New York Mellon Trust Company, N.A. (the “Trustee”).


 


Each
party agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders of the Securities issued under this
Indenture.


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1             Definitions.


 


“Additional
Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the
Company in respect of certain taxes imposed on Holders specified therein and
which are owing to such Holders.


 


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


 


“Agent”
means any Registrar, Paying Agent, co-agent, co-registrar or Service Agent.


 


“Authorized
Newspaper” means a newspaper in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in the place in connection with
which the term is used.  If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof that is made or given by the Trustee shall constitute a sufficient
publication of such notice.


 


“Bearer”
means anyone in possession from time to time of a Bearer Security.


 


“Bearer
Global Security” or “Bearer Global Securities” means a Bearer Security or
Securities, as the case may be, in the form established pursuant to
Section 2.2 evidencing all or part of a Series of Bearer Securities,
deposited with a common depositary for Euroclear Bank S.A./N.V., as operator of
the Euroclear System and/or Clearstream Banking, société anonyme, Luxembourg.


 


“Bearer
Security” means any Security, including any interest coupon appertaining
thereto, that does not provide for the identification of the Holder thereof.


 


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


 


“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant 


 


2

















 


to
authorization by the Board of Directors and to be in full force and effect on
the date of the certificate and delivered to the Trustee.


 


“Business
Day” means, unless otherwise provided by Board Resolution, Officers’
Certificate or supplemental indenture hereto for a particular Series, each day
which is not a Legal Holiday.


 


“Capital
Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.


 


“Company”
means the party named as such above until a successor replaces it and
thereafter means the successor.


 


“Company
Order” means a written order signed in the name of the Company by two Officers,
one of whom must be the Company’s Chief Executive Officer, President, Chief
Financial Officer or General Counsel.


 


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


 


“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business with respect to this Indenture or a Series of
Securities shall be principally administered.


 


“Debt”
of any Person as of any date means, without duplication, all indebtedness of
such Person in respect of borrowed money, including all interest, fees and
expenses owed in respect thereto (whether or not the recourse of the lender is
to the whole of the assets of such Person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments.


 


“Default”
means any event which is, or after notice or passage of time would be, an Event
of Default.


 


“Depositary”
means, with respect to the Securities of any Series issuable or issued in
whole or in part in the form of one or more Securities in global form, the
Person designated as Depositary for such Series by the Company, which
Depositary shall be a clearing agency registered under the Exchange Act; and if
at any time there is more than one such Person, “Depositary” as used with
respect to the Securities of any Series shall mean the Depositary with
respect to the Securities of such Series.


 


“Discount
Security” means any Security that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.2.


 


“Dollars”
means the currency of the United States of America.


 


3

















 


“ECU”
means the European Currency Unit as determined by the Commission of the
European Union.


 


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


 


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


 


“Foreign
Government Obligations” means with respect to Securities of any Series that
are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of
which obligations its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.


 


“Holder”
or “Securityholder” means a Person in whose name a Security is registered in
the Register or the holder of a Bearer Security.


 


“Indenture”
means this Indenture as originally executed and delivered and as amended from
time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.


 


“interest”
with respect to any Discount Security which by its terms bears interest only
after Maturity, means interest payable after Maturity.


 


“Maturity,”
when used with respect to any Security or installment of principal thereof,
means the date on which the principal of such Security or such installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, notice
of option to elect repayment or otherwise.


 


“Officer”
means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, the General Counsel any Vice-President, the
Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.


 


“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be
the Company’s Chief Executive Officer, President, Chief Financial Officer or
General Counsel.


 


“Opinion
of Counsel” means a written opinion of legal counsel who is reasonably
acceptable to the Trustee.  The counsel
may be an employee of or counsel to the Company.


 


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


 


“Place
of Payment”, when used with respect to the Securities of any Series, means the
place or places specified in accordance with Section 2.2 where the
principal of and any premium 


 


4

















 


and
interest on the Securities of that Series are payable, or if not so
specified, in accordance with Section 4.6.


 


“Preferred
Stock”, as applied to the Capital Stock of any Person, means Capital Stock of
any class or classes (however designated) that is preferred as to the payment
of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over shares of Capital
Stock of any other class of such Person.


 


“principal”
of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.


 


“Registered
Global Security” or “Registered Global Securities” means a Security or
Securities, as the case may be, in the form established pursuant to
Section 2.2 evidencing all or part of a Series of Securities, issued
to the Depositary for such Series or its nominee, and registered in the
name of such Depositary or nominee.


 


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


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.


 


“Senior
Debt” means the principal of, premium, if any, unpaid interest, and all fees
and other amounts payable in connection with the following, whether outstanding
on the date hereof or thereafter created, incurred, assumed or guaranteed, on
(x) the Debt of the Company, for money borrowed other than (a) any
Debt 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 Debt of the Company to any of its
Subsidiaries, (c) Debt to any employee of the Company, (d) any liability
for taxes and (e) Trade Payables, unless the instrument creating or
evidencing the same or pursuant to which the same is outstanding provides that
such Debt is not senior or prior in right of payment to the Securities,
(y) all obligations of the Company under interest rate, currency and
commodity swaps, caps, floors, collars, hedge arrangements, forward contracts
or similar agreements or arrangements and (z) renewals, extensions,
modifications and refundings of any such Debt. 
This definition may be modified or superseded by a supplemental
indenture.


 


“Senior
Securities” means Securities other than Subordinated Securities.


 


“Series”
or “Series of Securities” means each series of debentures, notes or other
debt instruments of the Company created pursuant to Sections 2.1 and 2.2
hereof.


 


“Stated
Maturity” when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which 


 


5

















 


the
principal of such Security or such installment of principal or interest is due
and payable (without regard for any provisions for acceleration, redemption
prepayment or otherwise).


 


“Subordinated
Securities” means Securities that by the terms established pursuant to
Section 2.2.9 are subordinated in right of payment to Senior Debt of the
Company.


 


“Subordination
Provisions,” when used with respect to the Subordinated Securities of any
Series, shall have the meaning established pursuant to Section 2.2.9 with
respect to the Subordinated Securities of such Series.


 


“Subsidiary”
of any Person means any corporation, association, partnership or other business
entity of which more than 50 percent of the total voting power of shares
of Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person, (ii) such Person and one
or more Subsidiaries of such Person or (iii) one or more Subsidiaries of
such Person.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in
effect on the date of this Indenture; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.


 


“Trade
Payables” means accounts payable or any other Debt or monetary obligations to
trade creditors created or assumed by the Company or any Subsidiary of the
Company in the ordinary course of business in connection with the receipt of
materials or services.


 


“Trust
Officer” means , when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions similar
to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.


 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder, 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.
Government Obligations” means direct obligations (or certificates representing
an ownership interest in such obligations) of the United States of America
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer’s option.


 


6

















 


Section 1.2             Other
Definitions.


 


	
  TERM

  	
   

  	
  DEFINED IN

  SECTION

  
	
  “Bankruptcy
  Law”

  	
   

  	
  6.1

  
	
  “Custodian”

  	
   

  	
  6.1

  
	
  “Event
  of Default”

  	
   

  	
  6.1

  
	
  “Journal”

  	
   

  	
  11.15

  
	
  “Judgment
  Currency”

  	
   

  	
  11.16

  
	
  “Legal
  Holiday”

  	
   

  	
  11.7

  
	
  “mandatory
  sinking fund payment”

  	
   

  	
  12.1

  
	
  “Market
  Exchange Rate”

  	
   

  	
  11.15

  
	
  “New
  York Banking Day”

  	
   

  	
  11.16

  
	
  “optional
  sinking fund payment”

  	
   

  	
  12.1

  
	
  “Paying
  Agent”

  	
   

  	
  2.4

  
	
  “Register”

  	
   

  	
  2.4

  
	
  “Registrar”

  	
   

  	
  2.4

  
	
  “Required
  Currency”

  	
   

  	
  11.16

  
	
  “Service
  Agent”

  	
   

  	
  2.4

  
	
  “successor
  person”

  	
   

  	
  5.1

  



 


Section 1.3             Incorporation
by Reference of Trust Indenture Act.


 


Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.  The following TIA terms used in this
Indenture have the following meanings:


 


“Commission”
means the SEC.


 


“indenture
securities” means the Securities.


 


“indenture
security holder” means a Securityholder.


 


“indenture
to be qualified” means this Indenture.


 


“indenture
trustee” or “institutional trustee” means the Trustee.


 


“obligor”
on the indenture securities means the Company and any successor obligor upon
the Securities.


 


All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein are used herein as so defined.


 


Section 1.4             Rules of
Construction.


 


Unless
the context otherwise requires:


 


7

















 


(a)           a term has the meaning assigned to
it;


 


(b)           an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles;


 


(c)           references to “generally accepted
accounting principles” shall mean generally accepted accounting principles in
effect as of the time when and for the period as to which such accounting
principles are to be applied;


 


(d)           “or” is not exclusive; and


 


(e)           words in the singular include the
plural, and in the plural include the singular.


 


ARTICLE 2

THE SECURITIES


 


Section 2.1             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.  All Securities of a Series shall be
identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution.  In the case of Securities of a Series to
be issued from time to time, the Board Resolution, Officers’ Certificate or
supplemental indenture may provide for the method by which specified terms
(such as interest rate, maturity date, record date or date from which interest
shall accrue) are to be determined. 
Securities may differ between Series in respect of any matters,
provided that all Series of Securities shall be equally and ratably entitled
to the benefits of the Indenture.


 


Section 2.2             Establishment
of Terms of Series of Securities.


 


At
or prior to the issuance of any Securities within a Series, the following shall
be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally
in the case of Subsections 2.2.2 through 2.2.24) by a Board Resolution, a
supplemental indenture or an Officers’ Certificate pursuant to authority
granted under a Board Resolution:


 


2.2.1                the title and designation of the
Securities of the Series, which shall distinguish the Securities of the Series from
the Securities of all other Series, and which may be part of a Series of
Securities previously issued;


 


2.2.2                any limit upon the aggregate
principal amount of the Securities of the Series that may be authenticated
and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of, transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8, 2.11,
3.6 or 9.6);


 


2.2.3                if other than Dollars, the
Foreign Currency or Foreign Currencies in which the Securities of the Series are
denominated;


 


8

















 


2.2.4                the date or dates on which the
principal of the Securities of the Series is payable or the method of
determination thereof;


 


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


 


2.2.6                the place or places where and
the manner in which, the principal of and any interest on Securities of the Series shall
be payable;


 


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


 


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


 


2.2.9                if the Securities of such Series are
Subordinated Securities, the terms pursuant to which the Securities of such Series will
be made subordinate in right of payment to Senior Debt and the definition of
such Senior Debt with respect to such Series (in the absence of an express
statement to the effect that the Securities of such Series are subordinate
in right of payment to all such Senior Debt, the Securities of such Series shall
not be subordinate to Senior Debt and shall not constitute Subordinated
Securities); and, in the event that the Securities of such Series are
Subordinated Securities, such Board Resolution, Officers’ Certificate or
supplemental indenture, as the case may be, establishing the terms of such Series shall
expressly state which articles, sections or other provisions thereof constitute
the “Subordination Provisions” with respect to the Securities of such Series;


 


2.2.10              if other than denominations of
$1,000 and any integral multiple thereof in the case of Registered Securities,
or $1,000 and $5,000 in the case of Bearer Securities, the denominations in
which Securities of the Series shall be issuable;


 


2.2.11              the percentage of the principal
amount at which the Securities will be issued, and, if other than the principal
amount thereof, the portion of the principal amount of Securities of the Series which
shall be payable upon declaration of acceleration of the maturity thereof and
the terms and conditions of any acceleration;


 


9

















 


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


 


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


 


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


 


2.2.15              whether the Securities of the Series will
be issuable as Registered Securities (and if so, whether such Securities will
be issuable as Registered Global Securities) or Bearer Securities, with or
without interest coupons appertaining thereto (and if, so whether such
Securities will be issuable as Bearer Global Securities), or any combination of
the foregoing, any restrictions applicable to the offer, sale or delivery of
Bearer Securities or the payment of interest thereon and the terms upon which
Bearer Securities of any Series may be exchanged for Registered Securities
of such Series and vice versa;


 


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


 


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


 


2.2.18              any trustees, depositaries,
authenticating or paying agents, transfer agents or registrars of any other
agents with respect to the Securities of such Series;


 


2.2.19              any deletion from, modification of
or addition to the Events of Default or covenants with respect to the
Securities of such Series, including, if applicable, covenants affording
Holders of debt protection with respect to the Company’s operations, financial
conditions and transactions involving the Company;


 


2.2.20              if the Securities of the Series are
to be convertible into or exchangeable for any other security or property of
the Company, including, without limitation, securities of another Person held
by the Company or its Affiliates and, if so, the terms thereof, including
conversion or exchange prices or rate and adjustments thereto;


 


2.2.21              the price or prices at which the
Securities will be issued;


 


10






 


 












 


2.2.22                                          any provisions for remarketing;


 


2.2.23                                          the terms applicable to any Securities issued at a discount from their
stated principal amount;


 


2.2.24                                          the CUSIP, ISIN or other identification number, if any; and


 


2.2.25                                          any other terms of the Series.


 


All
Securities of any one Series need not be issued at the same time and may
be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers’ Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.


 


Section 2.3                                      Execution and Authentication.


 


One
or more Officers shall sign the Securities for the Company by manual or
facsimile signature.


 


If
an Officer whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall be valid nevertheless so
long as such individual was an Officer at the time of execution of the
Security.


 


A
Security shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.  The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.


 


The
Trustee shall at any time, and from time to time, authenticate Securities for
original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon receipt by the
Trustee of a Company Order.  Such Company
Order may authorize authentication and delivery pursuant to electronic
instructions from the Company or its duly authorized agent or agents.  Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate.


 


The
aggregate principal amount of Securities of any Series outstanding at any
time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’
Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.


 


Prior
to the issuance of Securities of any Series, the Trustee shall have received
and (subject to Section 7.2) shall be fully protected in relying on:  (a) the Board Resolution, supplemental
indenture hereto or Officers’ Certificate establishing the form of the
Securities of that Series or of Securities within that Series and the
terms of the Securities of that Series or of Securities within that
Series, (b) an Officers’ Certificate complying with Section 11.4, and
(c) an Opinion of Counsel complying with Section 11.4, and stating
(1) that the form of such Securities 


 


11

















 


has
been established by a supplemental indenture or by or pursuant to a resolution
of the Board of Directors in accordance with Article 2 and in conformity
with the provisions of this Indenture, (2) that the terms of such
Securities have been established in accordance with Section 2.2 and in
conformity with the other provisions of this Indenture, (3) that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company, subject to the effect of any bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the enforcement of
creditors’ rights and to general equity principles, and (4) that all conditions
precedent in respect of the execution and delivery by the Company of such
Securities have been complied with.


 


The
Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series:  (a) if
the Trustee, being advised by counsel, determines that such action may not
lawfully be taken; or (b) if the Trustee in good faith shall determine
that such action would expose the Trustee to personal liability to Holders of
any then outstanding Series of Securities.


 


The
Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate the Securities.  Any such appointment shall be evidenced by an
instrument signed by a Trust Officer, a copy of which shall be furnished to the
Company.  Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.


 


Section 2.4                                      Registrar and Paying Agent.


 


The
Company shall maintain, with respect to each Series of Securities, at the
place or places specified with respect to such Series pursuant to
Section 2.2, an office or agency where Securities of such Series may
be presented or surrendered for payment (“Paying Agent”), where Securities of
such Series may be surrendered for registration of transfer or exchange (“Registrar”)
and where notices and demands to or upon the Company in respect of the
Securities of such Series and this Indenture may be served (“Service Agent”).  The Registrar shall keep a register with
respect to each Series of Registered Securities (the “Register”) and to
their transfer and exchange.  The Company
will give prompt written notice to the Trustee of the name and address, and any
change in the name or address, of each Registrar, Paying Agent or Service
Agent.  If at any time the Company shall
fail to maintain any such required Registrar, Paying Agent or Service Agent or
shall fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


The
Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligations to
maintain a Registrar, Paying Agent and Service Agent in each place so specified
pursuant to Section 2.2 for Securities of any Series for such
purposes.  The Company will give prompt
written notice to the Trustee of any such designation or rescission 


 


12

















 


and
of any change in the name or address of any such co-registrar, additional
paying agent or additional service agent. 
The term “Registrar” includes any co-registrar; the term “Paying Agent”
includes any additional paying agent; and the term “Service Agent” includes any
additional service agent.


 


The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and
Service Agent for each Series unless another Registrar, Paying Agent or
Service Agent, as the case may be, is appointed prior to the time Securities of
that Series are first issued.  The
Company or any of its domestically organized Subsidiaries may act as Paying
Agent, Registrar or Service Agent.


 


The
rights, privileges, protections, immunities and benefits given to the Trustee
under this Indenture including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each Agent acting hereunder.


 


The
Company shall enter into an appropriate agency agreement with any Registrar,
Paying Agent or Service Agent not a party to this Indenture, which shall
incorporate the terms of the TIA.  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 any such agent.


 


The
Company may remove any Registrar, Paying Agent or Service for any Series of
Securities upon written notice to such Registrar, Paying Agent or Service Agent
and to the Trustee; provided, however, that no such removal shall become
effective until (1) acceptance of an appointment by a successor as
evidenced by an appropriate agreement entered into by the Company and such
successor Registrar, Paying Agent or Service Agent, as the case may be, and
delivered to the Trustee or (2) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (1) above.  The Registrar, Paying Agent or Service Agent
may resign at any time upon written notice; provided, however, that the Trustee
may resign as Paying Agent, Registrar or Service Agent only if the Trustee also
resigns as Trustee in accordance with Section 7.8.


 


Section 2.5                                      Paying Agent to Hold Money in Trust.


 


Prior
to each due date of the principal and interest on any Series of
Securities, the Company shall deposit with the Paying Agent (or if the Company
or a Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due.  The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money
held by the Paying Agent for the payment of principal of or interest on the Series of
Securities, and shall notify the Trustee of any default by the Company in
making any such payment.  While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee.  The Company at any
time may require a Paying Agent to pay all money held by it to the
Trustee.  Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. 
If the Company or a Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of Securityholders of any Series of
Securities all money held by it as Paying Agent.


 


13

















 


Section 2.6                                      Securityholder Lists.


 


The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Securityholders
of each Series of Securities and shall otherwise comply with TIA
§ 312(a).  If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee at least five Business Day before each interest payment date, but in
any event not less frequently than semi-annually, and at such other times as
the Trustee may request in writing a list, in such form and as of such date as the
Trustee may reasonably require, of the names and addresses of Securityholders
of each Series of Securities.


 


Section 2.7                                      Exchange and Registration of Transfer.


 


The
Company shall cause to be kept at the Corporate Trust Office the Register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities of a Series and of
transfers of Securities of such Series. 
The Register shall be in written form or in any form capable of being
converted into written form within a reasonably prompt period of time.


 


Upon
surrender for registration of transfer of any Security of a Series to the
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.8, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Security of the same Series of
any authorized denominations and of a like aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.


 


Securities
of a Series may be exchanged for other Securities of the same Series of
any authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.2.  Whenever any Securities of a Series are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities of the same Series that the
Holder making the exchange is entitled to receive bearing registration numbers
not contemporaneously outstanding.


 


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


 


All
Securities of a Series presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Registrar)
be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company, and the Securities of such Series shall
be duly executed by the Holder thereof or his attorney duly authorized in
writing.


 


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


 


14

















 


connection
with any registration of transfer or exchange of such Securities (other than
any such transfer tax or similar governmental charge payable upon exchanges
pursuant to Sections 2.11, 3.6 or 9.6).


 


Neither
the Company nor the Trustee nor any Registrar shall be required to exchange,
issue or register a transfer of (a) Securities of any Series for a
period of fifteen calendar days next preceding date of mailing of a notice of
redemption of Securities of that Series selected for redemption, or
(b) Securities of any Series or portions thereof called for
redemption, except for the unredeemed portion of any Securities of that Series being
redeemed in part.


 


Section 2.8                                      Mutilated, Destroyed, Lost and Stolen
Securities.


 


If
a mutilated Security is surrendered to the Registrar or if the Securityholder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of the same Series if the requirements of Section 8-405 of
the Uniform Commercial Code are met, such that the Securityholder
(i) satisfies the Company or the Trustee within a reasonable time after he
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (ii) makes
such request to the Company or the Trustee prior to the Security being acquired
by a protected purchaser as defined in Section 8-303 of the Uniform
Commercial Code (a “protected purchaser”) and (iii) satisfies any other
reasonable requirements of the Trustee. 
If required by the Trustee or the Company, such Securityholder shall
furnish an indemnity bond sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, the Paying Agent and the Registrar
from any loss that any of them may suffer if a Security is replaced.  The Company and the Trustee may charge the
Securityholder for their expenses in replacing a Security.  In case any Security which has matured or is
about to mature or has been called for redemption, shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of (without surrender thereof except in
the case of a mutilated Security), as the case may be, if the applicant for
such payment or conversion shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or in connection with such substitution, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Company,
the Trustee and, if applicable, any Paying Agent evidence to their satisfaction
of the destruction, loss or theft of such Securities and of the ownership
thereof.


 


Every
replacement Security of any Series issued pursuant to this Section is
an additional obligation of the Company.


 


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.


 


15

















 


Section 2.9                                      Outstanding Securities.


 


The
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Registered Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.  A Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.


 


If
a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities (or portions thereof) payable on that date, and the
Paying Agent is not prohibited from paying such money to the Securityholders of
such Series on that date pursuant to the terms of the Indenture, then on
and after that date such Securities of the Series (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.


 


In
determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes
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 6.2.


 


Section 2.10                                Treasury Securities.


 


In
determining whether the Holders of the required principal amount of Securities
of a Series have concurred in any direction, waiver or consent, Securities
of a Series owned by the Company, any other obligor upon the Securities or
an Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent only Securities of a Series that the Trustee knows are so owned
shall be so disregarded.  Securities so
owned which have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or any other obligor on the Securities. 
In case of a dispute as to such right, the advice of counsel shall be
full protection in respect of any decision made by the Trustee in accordance
with such advice.  The Trustee may, but
shall not be obligated to, make a written request that the Company furnish to
the Trustee promptly an Officers’ Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described persons; and, subject to
Sections 7.1 and 7.2, the Trustee shall be entitled to accept such
Officers’ Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are outstanding for the
purpose of any such determination.


 


16

















 


Section 2.11                                Temporary Securities.


 


Pending
the preparation of Securities in certificated form, the Company may execute and
the Trustee or an authenticating agent appointed by the Trustee shall, upon a
Company Order, authenticate and deliver temporary Securities (printed,
lithographed, typewritten, photocopied or otherwise produced).  Temporary Securities shall be issuable in any
authorized denomination, and substantially in the form of the Securities in
certificated form, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the
Company.  Every such temporary Security
shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Securities in certificated form.  Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Securities of
the same Series in certificated form and thereupon any or all temporary
Securities may be surrendered in exchange therefor, at each office or agency
maintained by the Company pursuant to Section 4.7 and the Trustee or such
authenticating agent shall authenticate and make available for delivery in
exchange for such temporary Securities an equal aggregate principal amount of
Securities of the same Series in certificated form.  Such exchange shall be made by the Company at
its own expense and without any charge therefor.  Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Securities of the same Series in
certificated form authenticated and delivered hereunder.


 


Section 2.12                                Cancellation.


 


The
Company at any time may deliver Securities to the Trustee for
cancellation.  The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation and dispose of such canceled Securities in
accordance with its customary procedure. 
The Company may not issue new Securities to replace Securities that it
has paid or delivered to the Trustee for cancellation.  The Trustee shall not authenticate Securities
in place of canceled Securities other than pursuant to the terms of this
Indenture.


 


Section 2.13                                Defaulted Interest.


 


If
the Company defaults in a payment of interest on a Series of Securities,
it shall pay the defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest, to the Persons who are
Securityholders of the Series on a subsequent special record date.  The Company shall fix or cause to be fixed
any such special record date and payment date to the reasonable satisfaction of
the Trustee and shall promptly mail or cause to be mailed to each
Securityholder of the Series a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid.  The Company may pay defaulted interest in any
lawful manner.  Unless otherwise provided
in the designation of Securities of a Series, the defaulted interest rate shall
be the rate of interest borne by such Series at the time of such default.


 


17

















 


Section 2.14                                Registered Global Securities.


 


2.14.1                                          Terms of Securities.  A Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Registered Global
Securities and the Depositary for such Registered Global Security or
Securities.


 


2.14.2                                          Transfer and Exchange.  Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition
thereto, any Registered Global Security shall be exchangeable pursuant to
Section 2.7 of the Indenture for Securities registered in the names of
Holders other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Registered Global Security or if at any time
such Depositary ceases to be a clearing agency registered under the Exchange
Act, and, in either case, the Company fails to appoint a successor Depositary
within 90 days of such event or (ii) the Company executes and delivers to
the Trustee an Officers’ Certificate to the effect that such Registered Global
Security shall be so exchangeable.  Any
Registered Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the
Depositary shall direct in writing in an aggregate principal amount equal to
the principal amount of the Registered Global Security with like tenor and
terms.


 


Except
as provided in this Section 2.14.2, a Registered Global Security may not
be transferred except as a whole by the Depositary with respect to such
Registered Global Security to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such a successor Depositary.


 


2.14.3                                          Legend.  Any Registered Global Security issued
hereunder shall bear a legend in substantially the following form:


 


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


 


2.14.4                                          Acts of Holders.  The Depositary, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under the Indenture.


 


2.14.5                                          Payments.  Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2,
payment of the principal of and interest, if any, on any Registered Global
Security shall be made to the Holder thereof.


 


18

















 


2.14.6                                          Consents, Declaration and Directions.  The Company, the Trustee and any Agent shall
treat a Person as the Holder of such principal amount of outstanding Securities
of such Series represented by a Registered Global Security as shall be
specified in a written statement of the Depositary with respect to such
Registered Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the Holders
pursuant to this Indenture.


 


Section 2.15                                Computation of Interest.


 


Except
as otherwise specified pursuant to Section 2.2 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 2.16                                CUSIP and ISIN Numbers.


 


The
Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers
in notices of redemption as a convenience to Holders; 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 elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.  The Company shall promptly notify the Trustee
in writing of any changes to the CUSIP and ISIN numbers.


 


Section 2.17                                Transfers, etc.


 


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.


 


Section 2.18                                Global Securities.


 


Neither
the Trustee nor any Agent shall have any responsibility for any actions taken
or not taken by the Depositary.


 


ARTICLE 3

REDEMPTION


 


Section 3.1                                      Notice to Trustee.


 


The
Company may, with respect to any Series of Securities, reserve the right
to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities.  Such redemption may be
conditional upon the occurrence of events occurring after the delivery of a
notice of redemption.   If a Series of
Securities is redeemable 


 


19

















 


and
the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of
such Securities, it shall notify the Trustee in writing of the redemption date
and the principal amount of Series of Securities to be redeemed.  The Company shall give the notice at least
35 calendar days before the redemption date (or such shorter notice as may
be acceptable to the Trustee).


 


Section 3.2                                      Selection of Securities to be Redeemed.


 


Unless
otherwise indicated for a particular Series by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if less than all the Securities
of a Series are to be redeemed, the Trustee shall select the Securities of
the Series to be redeemed in any manner that the Trustee deems fair and
appropriate.  The Trustee shall make the
selection from Securities of the Series outstanding not previously called
for redemption.  The Trustee may select
for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000. 
Securities of the Series and portions of them it selects shall be
in amounts of $1,000 or whole multiples of $1,000 or, with respect to
Securities of any Series issuable in other denominations pursuant to
Section 2.2.10, the minimum principal denomination for each Series and
integral multiples thereof.  Provisions
of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for
redemption.


 


Section 3.3                                      Notice of Redemption.


 


Unless
otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate, at least
30 days but not more than 60 days before a redemption date, the
Company shall provide a notice of redemption by electronic transmission or
first-class mail to each Holder whose Securities are to be redeemed and if any
Bearer Securities are outstanding, publish on one occasion a notice in an
Authorized Newspaper.


 


The
notice shall identify the Securities of the Series to be redeemed and
shall state:


 


(a)                                  the redemption date;


 


(b)                                 the redemption price;


 


(c)                                  the name and address of the Paying Agent;


 


(d)                                 if less than all Securities of any Series are to be redeemed, the
identification of the particular Securities to be redeemed and the portion of
the principal amount of any Security to be redeemed in part;


 


(e)                                  that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price;


 


(f)                                    that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date;


 


(g)                                 any other information as may be required by the terms of the particular Series or
the Securities of a Series being redeemed;


 


20
















 


(h)           if the redemption is to be conditional upon the satisfaction of certain
events, a description of such events; and


 


(i)            the CUSIP, ISIN or other identification number, if any.


 


At
the Company’s written request, the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense and provided that the form
and content of such notice shall be prepared by the Company.


 


Section 3.4             Effect of Notice of Redemption.


 


Once
notice of redemption is mailed or published as provided in Section 3.3,
Securities of a Series called for redemption become due and payable on the
redemption date and at the redemption price, unless the conditions specified in
such notice have not been satisfied.  A
notice of redemption may not be conditional. 
Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date.


 


Section 3.5             Deposit of Redemption Price.


 


On
or before the redemption date, the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued interest, if any,
on all Securities to be redeemed on that date.


 


Section 3.6             Securities Redeemed in Part.


 


Upon
surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.


 


ARTICLE 4

COVENANTS


 


Section 4.1             Payment of Principal and Interest.


 


The
Company shall duly and punctually pay the principal of and interest, if any, on
the Securities of that Series in accordance with the terms of such
Securities and this Indenture.


 


Section 4.2             SEC Reports.


 


The
Company shall deliver (which delivery may be via electronic mail) to the Trustee
within 15 days after the filing by the Company with the SEC copies of the
annual reports and of the information, documents, and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act.  The Company also shall comply with the other
provisions of TIA § 314(a).


 


21

















 


Section 4.3             Compliance Certificate.


 


The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, a brief certificate from the principal executive
officer, principal financial officer, principal accounting officer or vice
president 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 11.5 of this Indenture.


 


Section 4.4             Stay, Extension and Usury Laws.


 


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


 


Section 4.5             Corporate Existence.


 


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


 


Section 4.6             Maintenance of Office or Agency.


 


The
Company will maintain an office or agency in the Borough of Manhattan, The City
of New York, where the Securities of a Series may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities of a Series and
this Indenture may be served.  The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency not designated or appointed by
the Trustee.  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.


 


The
Company may also from time to time designate co-registrars and one or more
offices or agencies where the Securities of a Series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations.  The Company will give
prompt written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.


 


22

















 


Section 4.7             Money For Securities Payments to be Held in
Trust.


 


If
the Company shall at any time act as its own Paying Agent with respect to the
Securities of any Series, it shall, on or before each due date of the principal
of and premium, if any, and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided.  The Company shall
promptly notify the Trustee of any failure by the Company (or any other obligor
of such Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.


 


Whenever
the Company shall have one or more Paying Agents for the Securities of any
Series, it shall, on or before each due date of the principal of and premium,
if any, and interest, if any, on such Securities, deposit with such Paying
Agents sums sufficient (without duplication) to pay the principal and premium
or interest so becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company shall promptly notify the Trustee of
any failure by it so to act.


 


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


 


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


 


(b)           give the Trustee notice of any failure by the Company (or any other
obligor upon such Securities) to make any payment of principal of or premium,
if any, or interest, if any, on such Securities; and


 


(c)           at any time during the continuance of any such failure, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons entitled to such
sums.


 


The
Company may at any time pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent and, if so stated in a
Company Order delivered to the Trustee, in accordance with the provisions of
Article 8; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.


 


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, if any, on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest, if any, has become due and
payable shall be paid to the Company on request of the 


 


23

















 


Company,
or, if then held by the Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security shall, as an unsecured
general creditor and not as the Holder of an outstanding Security, look only to
the Company for payment of the amount so due and payable and remaining unpaid,
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 payment to the Company, may at the
expense of the Company cause to be published once a week for two successive
weeks, in each case on any day of the week, in an Authorized Newspaper in each
Place of Payment, 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
paid to the Company.


 


Section 4.8             Waiver of Certain Covenants.


 


Except
as otherwise specified as contemplated by Section 2.2 for Securities of
such Series, the Company may, with respect to the Securities of any Series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided herein or pursuant to Section 2.2.19 or
Section 9.1(c) for the benefit of the Holders of such Series if
before the time for such compliance the Holders of at least 50 percent in
principal amount of the outstanding Securities of such Series shall, by an
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such wavier
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of such
term, provision or condition shall remain in full force and effect.


 


ARTICLE 5

SUCCESSORS


 


Section 5.1             When Company May Merge, Etc.


 


The
Company shall not consolidate with or merge into, or convey, transfer or lease
all or substantially all of its properties and assets to, any Person (a “successor
person”), and may not permit any Person to merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to, the Company,
unless:


 


(a)           either the Company shall be the continuing corporation or the successor
person (if other than the Company) is a corporation, partnership, trust or
other entity organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and expressly assumes
the Company’s obligations on the Securities and under this Indenture; and


 


(b)           immediately after giving effect to the transaction, no Default or Event
of Default, shall have occurred and be continuing.


 


The
Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture.


 


24

















 


Section 5.2             Successor Corporation Substituted.


 


The
successor person formed by such consolidation or into which the Company is
merged or to which such 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 person had been named
as the Company herein, and thereafter (except in the case of a lease to another
Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such
conveyance or transfer, any such predecessor corporation may be dissolved and
liquidated.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.1             Events of Default.


 


“Event
of Default,” wherever used herein with respect to Securities of any Series,
means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers’ Certificate, it is provided
that such Series shall not have the benefit of said Event of Default:


 


(a)           a default in the payment of any interest on any Security of that Series when
it becomes due and payable, and continuance of such default for a period of
30 days (unless the entire amount of such payment is deposited by the
Company with the Trustee or with a Paying Agent prior to the expiration of such
period of 30 days); provided that, a valid extension of an interest
payment period by the Company in accordance with the terms of such Securities
shall not constitute a failure to pay interest; or


 


(b)           a default in the payment of the principal of, or premium, if any, on, any
Security of that Series when due at its Maturity; or


 


(c)           a default in the deposit of any sinking fund payment, when and as due in
respect of any Security of that Series; or


 


(d)           a default, subject to the provisions in Section 4.8, in the
performance or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty that has been included in this
Indenture solely for the benefit of Series of Securities other than that
Series), which default continues uncured for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25 percent in
principal amount of the outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or


 


(e)           the Company pursuant to or within the meaning of any Bankruptcy Law:


 


(i)            commences a voluntary case,


 


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


 


25

















 


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


 


(iv)          makes a general assignment for the benefit of
its creditors, or


 


(v)           generally is unable to pay its debts as the
same become due; or


 


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


 


(i)            is for relief against the Company in an
involuntary case,


 


(ii)           appoints a Custodian of the Company for all or
substantially all of its property, or


 


(iii)          orders the liquidation of the Company, and the
order or decree remains unstayed and in effect for 60 days; or


 


(g)           any other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, in accordance with Section 2.2.19.


 


The
term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State
law for the relief of debtors.  The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.


 


Section 6.2             Acceleration of Maturity; Rescission and
Annulment.


 


If
an Event of Default described in Section 6.1(a), (b) or (c) occurs
and is continuing, then, and in each and every such case, except for any series
of Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25 percent in aggregate
principal amount of the Securities of each such affected series then
outstanding hereunder (each such series voting as a separate class) by notice
in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of such series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.


 


Except
as otherwise provided in the terms of any series of Senior Securities pursuant
to Section 2.2, if an Event of Default described in Section 6.1(d) or
(g) above with respect to all series of the Senior Securities then
outstanding, occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Senior Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25 percent
in aggregate principal amount of all of the Senior Securities then outstanding
hereunder (treated as one class) by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Senior Securities of any series are Discount Securities, such portion of
the principal amount as may be specified in the terms of such series) of all of
the 


 


26

















 


Senior
Securities then outstanding, and the interest accrued thereon, if any, to be
due and payable immediately, and upon such declaration, the same shall become
immediately due and payable.  If an Event
of Default described in clause (e) or (f) above occurs and is
continuing, then the principal amount of all the Senior Securities then
outstanding, and the interest accrued thereon, if any, shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.


 


Except
as otherwise provided in the terms of any series of Subordinated Securities
pursuant to Section 2.2, if an Event of Default described in
Section 6.1(d) or (g) above with respect to all series of
Subordinated Securities then outstanding, occurs and is continuing, then, and
in each and every such case, unless the principal of all of the Subordinated
Securities shall have already become due and payable, either the Trustee or the
Holders of not less than 25 percent in aggregate principal amount of all
of the Subordinated Securities then outstanding hereunder (treated as one
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Subordinated
Securities of any series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all of the
Subordinated Securities then outstanding, and the interest accrued thereon, if
any, to be due and payable immediately, and upon such declaration, the same
shall become immediately due and payable.


 


If
an Event of Default described in Section 6.1 (d) or (g) occurs
and is continuing, which Event of Default is with respect to less than all
series of Senior Securities then outstanding, then, and in each and every such
case, except for any series of Senior Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not
less than 25 percent in aggregate principal amount of the Senior
Securities of each such affected series then outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable.


 


If
an Event of Default described in Section 6.1(d) or (g) occurs
and is continuing, which Event of Default is with respect to less than all
series of Subordinated Securities then outstanding, then, and in each and every
such case, except for any series of Subordinated Securities the principal of
which shall have already become due and payable, either the Trustee or the
Holders of not less than 25 percent in aggregate principal amount of the
Subordinated Securities of each such affected series then outstanding hereunder
(each such series voting as a separate class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of such series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable.


 


If
an Event of Default specified in Section 6.1(e) or (f) shall
occur, the principal amount (or specified amount) of and accrued and unpaid
interest, if any, on all outstanding Securities 


 


27

















 


shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.


 


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


 


(a)           the Company has paid or deposited with the Trustee a sum sufficient to
pay


 


(i)            all overdue interest, if any, on all
Securities of that Series,


 


(ii)           the principal of any Securities of that Series which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities,


 


(iii)          to the extent that payment of such interest is
lawful, interest upon any overdue principal and overdue interest at the rate or
rates prescribed therefor in such Securities, and


 


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


 


and


 


(b)           all Events 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, have been cured or
waived as provided in Section 6.13.


 


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


 


Section 6.3             Collection of Indebtedness and Suits for
Enforcement by Trustee.


 


The
Company covenants that if


 


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


 


(b)           default is made in the payment of principal of any Security when due at
the Maturity thereof, or


 


(c)           default is made in the deposit of any sinking fund payment when and as
due by the terms of a Security, then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be 


 


28

















 


legally enforceable,
interest on any overdue principal or any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.


 


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


 


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


 


Section 6.4             Trustee May File Proofs of Claim.


 


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


 


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


 


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


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.


 


Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, 


 


29

















 


adjustment
or composition affecting the Securities or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.5             Trustee May Enforce Claims Without
Possession of Securities.


 


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


 


Section 6.6             Application of Money Collected.


 


Any
money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


First:  To the payment of all amounts due the Trustee
under Section 7.7; and


 


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


 


Third:  To the Company.


 


Section 6.7             Limitation on Suits.


 


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


 


(a)           such Holder has previously given written notice to the Trustee of an
Event of Default and the continuance thereof with respect to the Securities of
that Series;


 


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


 


(c)           such Holder or Holders have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the expenses and liabilities to
be incurred in compliance with such request;


 


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


 


30
















 


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


 


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


 


Section 6.8             Unconditional
Right of Holders to Receive Principal and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and interest, if any, on such Security on the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case of redemption, on
the redemption date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.


 


Section 6.9             Restoration
of Rights and Remedies.


 


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


 


Section 6.10           Rights
and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise.  The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


Section 6.11           Delay
or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Securities to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


31

















 


Section 6.12           Control
by Holders.


 


The
Holders of a majority in principal amount of the outstanding Securities of any Series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such Series,
provided that


 


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


 


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


 


(c)           subject to the provisions of
Section 6.1, the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Trust Officer of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability.


 


Section 6.13           Waiver
of Past Defaults.


 


The
Holders of not less than a majority in principal amount of the outstanding
Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to
such Series and its consequences, except a Default in the payment of the
principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding
Securities of any Series may rescind an acceleration and its consequences,
including any related payment default that resulted from such
acceleration).  Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


Section 6.14           Undertaking
for Costs.


 


All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10 percent in
principal amount of the outstanding Securities of any Series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or interest on any Security on or after the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the
redemption date).


 


32

















 


ARTICLE 7

TRUSTEE


 


Section 7.1             Duties
of Trustee.


 


(a)           If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person’s own affairs.


 


(b)           Except during the continuance of an
Event of Default:


 


(i)            the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no other implied covenants or obligations shall be read into this
Indenture against the Trustee; and


 


(ii)           in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; however, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(c)           The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:


 


(i)            this
paragraph does not limit the effect of paragraph (b) of this Section;


 


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


 


(iii)          the
Trustee shall not be liable with respect to any action it takes or omits to
take with respect to Securities of any Series in good faith in accordance
with the direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series.


 


(d)           Every provision of this Indenture
that in any way relates to the Trustee is subject to paragraph (a),
(b) and (c) of this Section.


 


(e)           The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company.


 


(f)            Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.


 


33

















 


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


 


(h)           Except for an Event of Default under
Sections 6.1(a), (b) or (c) hereof, the Trustee shall not be
deemed to have notice, nor shall it be charged with knowledge, of any Event of
Default unless a Trust Officer has actual knowledge thereof or unless written
notice of such Event of Default is received by the Trustee at its Corporate
Trust Office and such notice references the Notes and this Indenture.


 


(i)            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 and to
the provisions of the TIA.


 


Section 7.2             Rights
of Trustee.


 


(a)           The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person.  The Trustee need not investigate
any fact or matter stated in the document.


 


(b)           Before the Trustee acts or refrains
from acting, it may require an Officers’ Certificate or an Opinion of Counsel
or both.  The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers’ Certificate or Opinion of Counsel.


 


(c)           The Trustee may act through agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.


 


(d)           The Trustee shall not be liable for
any action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.


 


(e)           The Trustee may consult with counsel,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.


 


(f)            The Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.


 


(g)           The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.


 


34

















 


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


 


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


 


(j)            The permissive rights of the Trustee
enumerated herein shall not be construed as duties.


 


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


 


(l)            In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


(m)          In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable best efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


Section 7.3             Individual
Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or an Affiliate with the
same rights it would have if it were not Trustee.  Any Agent may do the same with like
rights.  The Trustee is also subject to
Sections 7.10 and 7.11.


 


Section 7.4             Trustee’s
Disclaimer.


 


The
Trustee shall not be responsible and makes no representation as to the validity
or adequacy of this Indenture or the Securities, it shall not be accountable
for the Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities or in any document issued in
connection with the sale of the Securities or in the Securities other than its
certificate of authentication.


 


35

















 


Section 7.5             Notice
of Defaults.


 


If
a Default or Event of Default occurs and is continuing with respect to the
Securities of any Series and if such Default or Event of Default is known
to a Trust Officer of the Trustee, the Trustee shall mail to each
Securityholder of the Securities of that Series and, if any Bearer
Securities are outstanding, publish on one occasion in an Authorized Newspaper,
notice of a Default or Event of Default within 90 days after the occurrence
thereof.  Except in the case of a Default
or Event of Default in payment of principal, premium, if any, of or interest on
any Security of any Series or in payment of any redemption obligation, the
Trustee may withhold the notice if and so long as its corporate trust committee
or a committee of its Trust Officers in good faith determines that withholding
the notice is in the interests of Securityholders of that Series.


 


Section 7.6             Reports
by Trustee to Holders.


 


As
promptly as practicable after each May 15 beginning with May 15,
2009, and in any event prior to July 15 in each year, the Trustee shall
transmit by mail to all Securityholders, as their names and addresses appear on
the register kept by the Registrar and, if any Bearer Securities are outstanding,
publish in an Authorized Newspaper, a brief report dated as of May 15,
each year as and if required by TIA § 313(a) if and to the extent
required by such subsection.  The Trustee
shall also comply with TIA § 313(b) and TIA § 313(c).


 


A
copy of each report at the time of its mailing to Securityholders of any Series shall
be filed with the SEC and each stock exchange (if any) on which the Securities
of that Series are listed.  The
Company shall promptly notify the Trustee when Securities of any Series are
listed on any stock exchange and of any delisting thereof.


 


Section 7.7             Compensation
and Indemnity.


 


The
Company shall pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services.  Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.  The Company shall indemnify the Trustee, and hold
it harmless, against any and all loss, liability or expense (including
reasonable attorneys’ fees) incurred by or in connection with the offer and
sale of the Securities or the administration of this trust and the performance
of its duties hereunder.  The Trustee
shall notify the Company of any claim for which it may seek indemnity promptly
upon obtaining actual knowledge thereof. 
The Company shall defend the claim and the indemnified party shall
provide reasonable cooperation at the Company’s expense in the defense.  Such indemnified parties may have separate
counsel and the Company shall pay the fees and expenses of such counsel;
provided, however, that the Company shall not be required to pay such fees and
expenses if it assumes such indemnified parties’ defense and, in such
indemnified parties’ reasonable judgment, there is no conflict of interest
between the Company and such parties in connection with such defense.  The Company need not reimburse any expense or
indemnify against any loss, 


 


36

















 


liability
or expense incurred by an indemnified party through such party’s own willful
misconduct and negligence.


 


To
secure the Company’s payment obligations in this Section, the Trustee shall
have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest and any liquidated damages on particular
Securities of that Series.


 


The
Company’s payment obligations pursuant to this Section shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.


 


Section 7.8             Replacement
of Trustee.


 


The
Trustee may resign with respect to the Securities of one or more Series at
any time by giving the Company not less than 90 days’ prior written
notice.  The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee
with respect to that Series by so notifying the Trustee and may appoint a
successor Trustee.  The Company shall
remove the Trustee with respect to Securities of one or more Series if:


 


(a)           the Trustee fails to comply with
Section 7.10;


 


(b)           the Trustee is adjudged bankrupt or
insolvent;


 


(c)           a receiver or other public officer
takes charge of the Trustee or its property; or


 


(d)           the Trustee otherwise becomes
incapable of acting.


 


If
the Trustee resigns, is removed by the Company or by the Holders of a majority
in principal amount of the Securities of any Series and such
Securityholders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. 
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee with respect to each Series of Securities for
which it is acting as Trustee under this Indenture.  The successor Trustee shall mail a notice of
its succession to each Securityholder of each such Series and, if any
Bearer Securities are outstanding, publish such notice on one occasion in an
Authorized Newspaper.  The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.7.


 


37

















 


If
a successor Trustee with respect to the Securities of any one or more Series does
not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee or the Holders of 10 percent in principal
amount of the Securities of the applicable Series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.


 


If
the Trustee with respect to the Securities of any one or more Series fails
to comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.


 


Section 7.9             Successor
Trustee by Merger, etc.


 


If
the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.


 


In
case at the time such successor or successors by merger, conversion or
consolidation to the Trustee with respect to the Securities of any one or more Series shall
succeed to the trusts created by this Indenture any of the Securities of the
applicable Series shall have been authenticated but not delivered, any
such successor to such Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities of the applicable Series so
authenticated; and in case at that time any of the Securities of such
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 to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
of such Series or in this Indenture provided that the certificate of the
Trustee shall have.


 


Section 7.10           Eligibility;
Disqualification.


 


The
Trustee shall at all times satisfy the requirements of
TIA § 310(a).  The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition.  The Trustee shall comply with TIA
§ 310(b); provided, however, that there shall be excluded from the
operation of TIA § 310(b)(1) 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 § 310(b)(1) are met.


 


Section 7.11           Preferential
Collection of Claims Against Company.


 


The
Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). 
A Trustee who has resigned or been removed shall be subject to TIA
§ 311(a) to the extent indicated.


 


38

















 


ARTICLE 8

SATISFACTION AND DISCHARGE; DEFEASANCE


 


Section 8.1             Satisfaction
and Discharge of Indenture.


 


This
Indenture, with respect to Securities of any Series (if all Series issued
under this Indenture are not to be effected) shall, upon Company Order, cease
to be of further effect (except as hereinafter provided in this
Section 8.1), 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 or (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 Sections 2.5 and 4.7) have been delivered to the Trustee for
cancellation; or


 


(ii)           all
such Securities of such Series not theretofore delivered to the Trustee
for cancellation:


 


(1)           have become due and payable, or


 


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


 


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


 


(4)           are deemed paid and discharged
pursuant to Section 8.3, as applicable;


 


and
the Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on, and any mandatory sinking fund
payments to the date of such deposit (in the case of Securities of such Series which
have become due and payable on or prior to the date of such deposit) or to the
Stated Maturity or redemption date, as the case may be;


 


(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 Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.


 


39






 












 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section,
the provisions of Sections 2.4, 2.7, 2.8, 4.7 (last paragraph only), 8.1,
8.2 and 8.5 shall survive.


 


Section 8.2                                      Application of Trust Funds; Indemnification.


 


(a)                                  Subject to the provisions of Section 8.5, all money deposited with
the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.3 or 8.4 and all money received by the Trustee in
respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with or received by the Trustee or
to make mandatory sinking fund payments or analogous payments as contemplated
by Sections 8.3 or 8.4.


 


(b)                                 The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government Obligations
or Foreign Government Obligations deposited pursuant to Sections 8.3 or
8.4 or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.


 


(c)                                  The Trustee shall deliver or pay to the Company from time to time upon
Company Request any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which,
in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee,
are then in excess of the amount thereof which then would have been required to
be deposited for the purpose for which such U.S. Government Obligations or
Foreign Government Obligations or money were deposited or received.  This provision shall not authorize the sale
by the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.


 


Section 8.3                                      Legal Defeasance of Securities of any Series.


 


Unless
this Section 8.3 is otherwise specified, pursuant to Section 2.2.24, to
be inapplicable to Securities of any Series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the outstanding
Securities of such Series on the 91st day after the date of the deposit
referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall
no longer be in effect (and the Trustee, at the expense of the Company, shall,
at Company Request, execute proper instruments acknowledging the same), except
as to:


 


(a)                                  the rights of Holders of Securities of such Series to receive, from
the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of
any mandatory sinking 


 


40

















 


fund payments applicable
to the Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and the Securities
of such Series;


 


(b)                                 the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and


 


(c)                                  the rights, powers, trust and immunities of the Trustee hereunder;


 


provided
that, the following conditions shall have been satisfied:


 


(d)                                 the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated solely
to the benefit of the Holders of such Securities (i) in the case of
Securities of such Series denominated in Dollars, cash in Dollars (or such
other money or currencies as shall then be legal tender in the United States)
and/or U.S. Government Obligations, or (ii) in the case of Securities of
such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the
payment of interest and principal in respect thereof, in accordance with their
terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including mandatory sinking fund or analogous
payments) of and interest, if any, on all the Securities of such Series on
the dates such installments of interest or principal are due;


 


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


 


(f)                                    no Default or Event of Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;


 


(g)                                 the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel from a nationally recognized law firm to the effect
that (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred;


 


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


 


41

















 


(i)                                     such deposit shall not result in the trust arising from such deposit
constituting an investment company (as defined in the Investment Company Act of
1940, as amended), or such trust shall be qualified under such Act or exempt from
regulation thereunder; and


 


(j)                                     the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for relating to the defeasance contemplated by this Section 8.3 have been
complied with.


 


Section 8.4                                      Covenant Defeasance.


 


Unless
this Section 8.4 is otherwise specified pursuant to Section 2.2.24 to
be inapplicable to Securities of any Series, on and after the date of the
deposit referred to in subparagraph (a) hereof, the Company may omit to
comply with any term, provision or condition set forth under Sections 4.2,
4.3, 4.4, 4.5 and 5.1 as well as any additional covenants contained in a
supplemental indenture hereto for a particular Series of Securities or a
Board Resolution or an Officers’ Certificate delivered pursuant to
Section 2.2.24 (and the failure to comply with any such covenants shall
not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1
shall not constitute a Default or Event of Default hereunder, with respect to
the Securities of such Series, provided that the following conditions shall
have been satisfied:


 


(a)                                  with reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars,
cash in Dollars (or such other money or currencies as shall then be legal
tender in the United States) and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay principal and interest, if any, on and
any mandatory sinking fund in respect of the Securities of such Series on
the dates such installments of interest or principal are due;


 


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


 


(c)                                  no Default or Event of Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit;


 


(d)                                 the Company shall have delivered to the Trustee an Opinion of Counsel
from a nationally recognized law firm confirming that Holders of the Securities
of such Series will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance and will be subject to
federal income tax on the same amounts, in the same manner 


 


42

















 


and at the same times as
would have been the case if such deposit and defeasance had not occurred;


 


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


 


(f)                                    the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the defeasance contemplated by this Section 8.4
have been complied with.


 


Section 8.5                                      Repayment to Company.


 


The
Trustee and the Paying Agent shall promptly pay to the Company (or 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 4.7 shall apply to any money held by the
Trustee or any Paying Agent that remains unclaimed for two years after the
Maturity of any Series or Securities for which money or U.S. Government
Obligations have been deposited pursuant to Sections 8.3 and 8.4.


 


Section 8.6                                      Effect of Subordination Provisions.


 


Unless
otherwise expressly established pursuant to Section 2.2 with respect to
the Subordinated Securities of any Series, the provisions of Article 10
hereof, insofar as they pertain to the Subordinated Securities of such series,
and the Subordination Provisions established pursuant to Section 2.2.9 with
respect to such Series, are hereby expressly made subject to the provisions for
satisfaction and discharge and defeasance and covenant defeasance set for this
Article 8 and, anything herein to the contrary notwithstanding, upon the
effectiveness of such satisfaction and discharge and defeasance and covenant
defeasance pursuant to this Article 8 with respect to the Securities of
such Series, such Securities shall thereupon cease to be so subordinated and
shall no longer be subject to the provisions of Article 10 or the
Subordination Provisions established pursuant to Section 2.2.9 with
respect to such series and, without limitation to the foregoing, all moneys,
U.S. Government Obligations and other securities or property deposited with the
Trustee (or other qualifying trustee) in trust in connection with such
satisfaction and discharge, defeasance or covenant defeasance, as the case may
be, and all proceeds therefrom may be applied to pay the principal of, premium,
if any, on, and mandatory sinking fund payments, if any with respect to the
Securities of such Series as and when the same shall become due and
payable notwithstanding the provisions of Article 10 or such Subordination
Provisions.


 


ARTICLE 9

AMENDMENTS AND WAIVERS


 


Section 9.1                                      Without Consent of Holders.


 


The
Company and the Trustee may amend or supplement this Indenture or the
Securities of one or more Series without the consent of any
Securityholder:


 


43

















 


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


 


(b)                                 to comply with Article V;


 


(c)                                  to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as shall be for the protection of the
Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth; 


 


(d)                                 add a guarantor or permit any Person to guarantee the obligations under
any Series of Securities;


 


(e)                                  to cure any ambiguity, defect or inconsistency;


 


(f)                                    to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by this Indenture;


 


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


 


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


 


(i)                                     to make any change that does not materially adversely affect the rights
of any Securityholder; and


 


(j)                                     to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA.


 


Section 9.2                                      With Consent of Holders.


 


The
Company and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of
the outstanding Securities of each Series affected by such supplemental
indenture (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Securityholders of each such Series.  Except as provided in Section 6.13, the
Holders of at least a 


 


44

















 


majority
in principal amount of the outstanding Securities of each Series affected
by such waiver by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities of such
Series) may waive compliance by the Company with any provision of this
Indenture or the Securities with respect to such Series.


 


It
shall not be necessary for the consent of the Holders of Securities under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the
substance thereof.  After a supplemental
indenture or waiver under this section becomes effective, the Company shall
mail to the Holders of Securities affected thereby and, if any Bearer
Securities affected thereby are outstanding, publish on one occasion in an
Authorized Newspaper, a notice briefly describing the supplemental indenture or
waiver.  Any failure by the Company to
mail or publish such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.


 


Section 9.3                                      Limitations.


 


Without
the consent of each Securityholder affected, an amendment or waiver may not:


 


(a)                                  extend the final maturity of any Security;


 


(b)                                 reduce the principal amount thereof, or premium thereon, if any;


 


(c)                                  reduce the rate or extend the time of payment of interest thereon,


 


(d)                                 reduce any amount payable on redemption thereof;


 


(e)                                  make the principal thereof (including any amount in respect of original
issue discount), or premium thereon, if any, or interest thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms thereof;


 


(f)                                    reduce the amount of the principal of a Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to
Section 6.2 or the amount thereof provable in bankruptcy pursuant to
Section 6.4;


 


(g)                                 in the case of Subordinated Securities of any series, modify any of the
Subordination Provisions or the definition of “Senior Indebtedness” relating to
such series in a manner adverse to the holders of such Subordinated Securities;


 


(h)                                 alter the provisions of Section 11.15 or 11.16;


 


(i)                                     impair or affect the right of any Securityholder to institute suit for
the payment thereof when due or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder;


 


(j)                                     reduce the aforesaid percentage of Securities of any Series, the consent
of the Holders of which is required for any such supplemental indenture, or the
consent of whose 


 


45

















 


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


 


(k)                                  modify any provision of this Section 9.3.


 


Section 9.4                                      Compliance with Trust Indenture Act.


 


Every
amendment to this Indenture or the Securities of one or more Series shall
be set forth in a supplemental indenture hereto that complies with the TIA as
then in effect.


 


Section 9.5                                      Revocation and Effect of Consents.


 


Until
an amendment or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on
any Security.  However, any such Holder
or subsequent Holder may revoke the consent as to his Security or portion of a
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective.


 


Any
amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of
clauses (a) through (g) of Section 9.3.  In that case, the amendment or waiver shall
bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Securityholders entitled to give their consent or take any
other action described above or required or permitted to be taken pursuant to
this Indenture.  If a record date is
fixed, then notwithstanding the immediately preceding paragraph, those Persons
who were Securityholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Securityholders after such record date.


 


Section 9.6                                      Notation on or Exchange of Securities.


 


The
Trustee may place an appropriate notation about an amendment or waiver on any
Security of any Series thereafter authenticated.  The Company in exchange for Securities of
that Series may issue and the Trustee shall authenticate upon written
request new Securities of that Series that reflect the amendment or
waiver.


 


Section 9.7                                      Trustee Protected.


 


In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution of the
supplemental indenture 


 


46

















 


have
been complied with.  The Trustee shall
sign all supplemental indentures, except that the Trustee need not sign any
supplemental indenture that adversely affects its rights.


 


ARTICLE 10


SUBORDINATION
OF SECURITIES


 


Section 10.1                                Agreement to Subordinate.


 


The
Company, for itself, its successors and assigns, covenants and agrees, and each
Holder of Subordinated Securities of any Series by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any) and interest, if any, on, and mandatory sinking fund payments,
if any, in respect of each and all of the Subordinated Securities of such
series shall be expressly subordinated, to the extent and in the manner
provided in the Subordination Provisions established with respect to the
Subordinated Securities of such Series pursuant to Section 2.2.9
hereof, in right of payment to the prior payment in full of all Senior Debt
with respect to such Series.


 


ARTICLE 11


MISCELLANEOUS


 


Section 11.1                                Trust Indenture Act Controls.


 


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


 


Section 11.2                                Notices.


 


Any
notice or communication by the Company or the Trustee to the other is duly
given if in writing and delivered in person or mailed by first-class mail:


 


if
to the Company:


 


General
Moly, Inc.


1726 Cole
Blvd., Suite 115


Lakewood,
CO  80401


Attention:     R. Scott Roswell,
Corporate Counsel — VP Human Resources


 


and


 


General
Moly, Inc.


1726 Cole
Blvd., Suite 115


Lakewood
CO  80401


Attention:     Chief Financial
Officer


 


47

















 


if
to the Trustee:


 


The
Bank of New York Mellon Trust Company, N.A.


700 South
Flower St., Suite 500


Los
Angeles, CA  90017


Attention:     Corporate Trust Unit


 


The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


Any
notice or communication to a Securityholder shall be provided by electronic
transmission or by first-class mail to his address shown on the register kept
by the Registrar and, if any Bearer Securities are outstanding, published in an
Authorized Newspaper.  Failure to provide
a notice or communication to a Securityholder of any Series or any defect
in it shall not affect its sufficiency with respect to other Securityholders of
that or any other Series.


 


If
a notice or communication is provided or published in the manner provided
above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.


 


If
the Company provides a notice or communication to Securityholders, it shall
provide a copy to the Trustee and each Agent at the same time.


 


In
case, by reason of the suspension of or irregularities in regular mail service,
it shall be impracticable to mail notice by the Company when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.


 


In
addition to the foregoing, the Trustee agrees to accept and act upon notice,
instructions or directions from the Company pursuant to this Indenture sent by
unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods.  If the Company
elects to give the Trustee e-mail or facsimile instructions (or instructions by
a similar electronic method) and the Trustee in its discretion elects to act
upon such instructions, the Trustee’s understanding of such instructions shall
be deemed controlling.  The Trustee shall
not be liable for any losses, costs or expenses arising directly or indirectly
from the Trustee’s reliance upon and compliance with such instructions.  The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.


 


Section 11.3                                Communication by Holders with Other Holders.


 


Securityholders
of any Series may communicate pursuant to TIA § 312(b) with
other Securityholders of that Series or any other Series with respect
to their rights under this Indenture 


 


48

















 


or
the Securities of that Series or all Series.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA § 312(c).


 


Section 11.4                                Certificate and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:


 


(a)                                  an Officers’ Certificate in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


(b)                                 an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.


 


Section 11.5                                Statements Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


(a)                                  a statement that the person making such certificate or opinion has read
such covenant or condition;


 


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


 


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


 


(d)                                 a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.


 


Section 11.6                                Rules by Trustee and Agents.


 


The
Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. 
Any Agent may make reasonable rules and set reasonable requirements
for its functions.


 


Section 11.7                                Legal Holidays.


 


Unless
otherwise provided by Board Resolution, Officers’ Certificate or supplemental
indenture for a particular Series, a “Legal Holiday” is a Saturday, Sunday or a
day on which banking institutions in the city (or in any of the cities, if more
than one) in which amounts are payable, as specified in the form of such
Security, are not required by any applicable law or regulation to be open, and
no interest shall accrue for the intervening period.  If a regular record date is a Legal Holiday,
the record date shall not be affected.


 


49
















 


Section 11.8                                No Recourse Against Others.


 


No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and the coupons, if any, appertaining thereto by
the Holders thereof and as part of the consideration for the issue of the
Securities and the coupons, if any, appertaining thereto.


 


Section 11.9                                Counterparts.


 


This
Indenture may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.


 


Section 11.10                          Governing Laws; Waiver of Jury Trial.


 


THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 11.11                          No Adverse Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. 
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.


 


Section 11.12                          Successors.


 


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


 


50

















 


Section 11.13                          Severability.


 


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 11.14                          Table of Contents, Headings, Etc.


 


The
Table of Contents, Cross Reference Table, and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.


 


Section 11.15                          Securities in a Foreign Currency or in ECU.


 


Unless
otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture
with respect to a particular Series of Securities, whenever for purposes
of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such
time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate at
such time.  For purposes of this
Section 11.15, “Market Exchange Rate” shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Union (or any successor thereto) as published in the
Official Journal of the European Union (such publication or any successor
publication, the “Journal”).  If such
Market Exchange Rate is not available for any reason with respect to such
currency, the Company shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York or, in the
case of ECUs, the rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs, rates of exchange
from one or more major banks in The City of New York or in the country of issue
of the currency in question or, in the case of ECUs, in Luxembourg or such
other quotations or, in the case of ECUs, rates of exchange as the Company
shall deem appropriate.  The provisions
of this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant
to the terms of this Indenture.


 


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


 


51

















 


Section 11.16                          Judgment Currency.


 


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


 


Section 11.17                          Acts of Holders.


 


(a)                                  Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all Series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company.  Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “ACT” of the
Holders signing such instrument or instruments and so voting at any such
meeting.  Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 7.1 and 7.2)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 11.17.


 


(b)                                 Subject to Sections 7.1 and 7.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee.  The holding of Registered Securities shall be
proved by the Security register or by a certificate of the registrar thereof.


 


52

















 


(c)                                  The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name any Security shall be registered upon
the Security register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Company nor the Trustee nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. 
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Holder of any Bearer Security as the absolute owner of such Bearer
Security (whether or not such Bearer Security shall be overdue) for the purpose
of receiving payment thereof or on account thereof and for all other purposes,
and neither the Company, the Trustee, nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.  All such payments so made to any such person,
or upon his order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Bearer Security.


 


(d)                                 At any time prior to (but not after) the evidencing to the Trustee, as
provided in this Section 11.17, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security.  Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security.  Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all the Securities affected by such action.


 


ARTICLE 12

SINKING FUNDS


 


Section 12.1                                Applicability of Article.


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of the Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.


 


The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any Series is herein referred to as a “mandatory sinking
fund payment” and any other amount provided for by the terms of Securities of
such Series is herein referred to as an “optional sinking fund payment.”
If provided for by the terms of Securities of any Series, the cash amount of
any sinking fund payment may be subject to reduction as provided in 


 


53

















 


Section 12.2.  Each sinking fund payment shall be applied to
the redemption of Securities of any Series as provided for by the terms of
the Securities of such Series.


 


Section 12.2                                Satisfaction of Sinking Fund Payments with
Securities.


 


The
Company may, in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of any Series to be made pursuant to the terms
of such Securities (1) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and
(2) apply as credit Securities of such Series to which such sinking
fund payment is applicable and which have been redeemed either at the election
of the Company pursuant to the terms of such Series of Securities (except
pursuant to any mandatory sinking fund) or through the application of permitted
optional sinking fund payments or other optional redemptions pursuant to the
terms of such Securities, provided that such Securities have not been
previously so credited.  Such Securities
shall be received by the Trustee, together with an Officers’ Certificate with
respect thereto, not later than 15 days prior to the date on which the Trustee
begins the process of selecting Securities for redemption, and shall be credited
for such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. 
If as a result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 12.2, the principal amount of Securities
of such Series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such Series
for redemption, except upon receipt of a Company Order that such action be
taken, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that
the Trustee or such Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that Series purchased by the Company having an
unpaid principal amount equal to the cash payment required to be released to
the Company.


 


Section 12.3                                Redemption of Securities for Sinking Fund.


 


Not
less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date
for any Series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that Series pursuant to the terms of that Series,
the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that Series pursuant to Section 12.2, and
the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and the Company shall thereupon be obligated to pay the
amount therein specified.  Not less than
30 days (unless otherwise indicated in the Board Resolution, Officers’
Certificate or supplemental indenture in respect of a particular Series of
Securities) before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in 


 


54

















 


Section 3.3.  Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.


 


55

















 


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


 


	
   

  	
  GENERAL MOLY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK
  MELLON TRUST COMPANY, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


56