EXHIBIT 4.2


 


QUICKLOGIC CORPORATION


 


TO


 






 


AS TRUSTEE


 


INDENTURE


 


DATED AS OF
                    ,
20


 


 


SUBORDINATED DEBT SECURITIES


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND OTHER
  PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Compliance Certificates and Opinions

  	
  10

  
	
  Section 1.3

  	
  Form of Documents Delivered to Trustee

  	
  11

  
	
  Section 1.4

  	
  Acts of Holders; Record Dates

  	
  11

  
	
  Section 1.5

  	
  Notices, etc., to Trustee and Company

  	
  13

  
	
  Section 1.6

  	
  Notice to Holders; Waiver

  	
  14

  
	
  Section 1.7

  	
  Conflict with Trust Indenture Act

  	
  14

  
	
  Section 1.8

  	
  Effect of Headings and Table of Contents

  	
  15

  
	
  Section 1.9

  	
  Successors and Assigns

  	
  15

  
	
  Section 1.10

  	
  Separability Clause

  	
  15

  
	
  Section 1.11

  	
  Benefits of Indenture

  	
  15

  
	
  Section 1.12

  	
  Governing Law

  	
  15

  
	
  Section 1.13

  	
  Legal Holidays

  	
  15

  
	
  Section 1.14

  	
  Indenture and Securities Solely Corporate
  Obligations

  	
  15

  
	
  Section 1.15

  	
  Indenture May be Executed in Counterparts

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 SECURITY FORMS

  	
  16

  
	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  16

  
	
  Section 2.2

  	
  Form of Face of Security

  	
  16

  
	
  Section 2.3

  	
  Form of Reverse of Security

  	
  18

  
	
  Section 2.4

  	
  Form of Legend for Global Securities

  	
  23

  
	
  Section 2.5

  	
  Reserved

  	
  23

  
	
  Section 2.6

  	
  Form of Conversion Notice

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 THE SECURITIES

  	
  25

  
	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable in Series

  	
  25

  
	
  Section 3.2

  	
  Denominations

  	
  28

  
	
  Section 3.3

  	
  Execution, Authentication, Delivery and Dating

  	
  28

  
	
  Section 3.4

  	
  Temporary Securities

  	
  30

  
	
  Section 3.5

  	
  Registration; Registration of Transfer and Exchange

  	
  30

  
	
  Section 3.6

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  32

  
	
  Section 3.7

  	
  Payment of Interest; Interest Rights Preserved

  	
  32

  
	
  Section 3.8

  	
  Persons Deemed Owners

  	
  34

  
	
  Section 3.9

  	
  Cancellation

  	
  34

  
	
  Section 3.10

  	
  Computation of Interest

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 SATISFACTION AND
  DISCHARGE

  	
  34

  
	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  34

  



 

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Application of Trust Money

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 REMEDIES

  	
  36

  
	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
  36

  
	
  Section 5.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  37

  
	
  Section 5.3

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
  39

  
	
  Section 5.4

  	
  Trustee May File Proofs of Claim

  	
  39

  
	
  Section 5.5

  	
  Trustee May Enforce Claims Without Possession
  of Securities

  	
  40

  
	
  Section 5.6

  	
  Application of Money Collected

  	
  40

  
	
  Section 5.7

  	
  Limitation on Suits

  	
  40

  
	
  Section 5.8

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest and to Convert

  	
  41

  
	
  Section 5.9

  	
  Restoration of Rights and Remedies

  	
  41

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  42

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  42

  
	
  Section 5.12

  	
  Control by Holders

  	
  42

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  42

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  43

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or Extension Laws

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 THE TRUSTEE

  	
  43

  
	
   

  	
   

  
	
  Section 6.1

  	
  Certain Duties and Responsibilities

  	
  43

  
	
  Section 6.2

  	
  Notice of Defaults

  	
  44

  
	
  Section 6.3

  	
  Certain Rights of Trustee

  	
  44

  
	
  Section 6.4

  	
  Not Responsible for Recitals or Issuance of
  Securities

  	
  46

  
	
  Section 6.5

  	
  May Hold Securities and Act as Trustee under
  Other Indentures

  	
  46

  
	
  Section 6.6

  	
  Money Held in Trust

  	
  46

  
	
  Section 6.7

  	
  Compensation and Reimbursement

  	
  46

  
	
  Section 6.8

  	
  Conflicting Interests

  	
  47

  
	
  Section 6.9

  	
  Corporate Trustee Required; Eligibility

  	
  47

  
	
  Section 6.10

  	
  Resignation and Removal; Appointment of Successor

  	
  47

  
	
  Section 6.11

  	
  Acceptance of Appointment by Successor

  	
  49

  
	
  Section 6.12

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  50

  
	
  Section 6.13

  	
  Preferential Collection of Claims Against Company

  	
  50

  
	
  Section 6.14

  	
  Appointment of Authenticating Agent

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 HOLDERS’ LISTS AND
  REPORTS BY TRUSTEE AND COMPANY

  	
  52

  
	
   

  	
   

  
	
  Section 7.1

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
  52

  
	
  Section 7.2

  	
  Preservation of Information; Communications to
  Holders

  	
  52

  
	
  Section 7.3

  	
  Reports by Trustee

  	
  53

  



 


ii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Reports by Company

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 CONSOLIDATION, MERGER,
  CONVEYANCE, TRANSFER OR LEASE

  	
  53

  
	
   

  	
   

  
	
  Section 8.1

  	
  Company May Consolidate, etc., Only on Certain
  Terms

  	
  53

  
	
  Section 8.2

  	
  Successor Substituted

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 SUPPLEMENTAL INDENTURES

  	
  54

  
	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures Without Consent of Holders

  	
  54

  
	
  Section 9.2

  	
  Supplemental Indentures with Consent of Holders

  	
  56

  
	
  Section 9.3

  	
  Execution of Supplemental Indentures

  	
  57

  
	
  Section 9.4

  	
  Effect of Supplemental Indentures

  	
  57

  
	
  Section 9.5

  	
  Conformity with Trust Indenture Act

  	
  57

  
	
  Section 9.6

  	
  Reference in Securities to Supplemental Indentures

  	
  57

  
	
  Section 9.7

  	
  Subordination Unimpaired

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 COVENANTS

  	
  58

  
	
   

  	
   

  
	
  Section 10.1

  	
  Payment of Principal, Premium and Interest

  	
  58

  
	
  Section 10.2

  	
  Maintenance of Office or Agency

  	
  58

  
	
  Section 10.3

  	
  Money for Securities Payments to be Held in Trust

  	
  59

  
	
  Section 10.4

  	
  Statement by Officers as to Default

  	
  60

  
	
  Section 10.5

  	
  Existence

  	
  60

  
	
  Section 10.6

  	
  Maintenance of Properties

  	
  60

  
	
  Section 10.7

  	
  Payment of Taxes and Other Claims

  	
  60

  
	
  Section 10.8

  	
  Waiver of Certain Covenants

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 REDEMPTION OF SECURITIES

  	
  61

  
	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of Article

  	
  61

  
	
  Section 11.2

  	
  Election to Redeem; Notice to Trustee

  	
  61

  
	
  Section 11.3

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  61

  
	
  Section 11.4

  	
  Notice of Redemption

  	
  62

  
	
  Section 11.5

  	
  Deposit of Redemption Price

  	
  63

  
	
  Section 11.6

  	
  Securities Payable on Redemption Date

  	
  63

  
	
  Section 11.7

  	
  Securities Redeemed in Part

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 SINKING FUNDS

  	
  64

  
	
   

  	
   

  
	
  Section 12.1

  	
  Applicability of Article

  	
  64

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  64

  
	
  Section 12.3

  	
  Redemption of Securities for Sinking Fund

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 DEFEASANCE AND COVENANT
  DEFEASANCE

  	
  65

  
	
   

  	
   

  
	
  Section 13.1

  	
  Company’s Option to Effect Defeasance or Covenant
  Defeasance

  	
  65

  



 


iii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 13.2

  	
  Defeasance and Discharge

  	
  65

  
	
  Section 13.3

  	
  Covenant Defeasance

  	
  66

  
	
  Section 13.4

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  67

  
	
  Section 13.5

  	
  Deposited Money, U.S. Government Obligations and
  Foreign Government Obligations to be Held in Trust; Miscellaneous Provisions

  	
  69

  
	
  Section 13.6

  	
  Reinstatement

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 CONVERSION OF SECURITIES

  	
  70

  
	
   

  	
   

  
	
  Section 14.1

  	
  Applicability of Article

  	
  70

  
	
  Section 14.2

  	
  Exercise of Conversion Privilege

  	
  70

  
	
  Section 14.3

  	
  No Fractional Shares

  	
  72

  
	
  Section 14.4

  	
  Adjustment of Conversion Price or Conversion Rate

  	
  72

  
	
  Section 14.5

  	
  Notice of Certain Corporate Actions

  	
  73

  
	
  Section 14.6

  	
  Reservation of Shares of Common Stock

  	
  73

  
	
  Section 14.7

  	
  Payment of Certain Taxes upon Conversion

  	
  74

  
	
  Section 14.8

  	
  Nonassessability

  	
  74

  
	
  Section 14.9

  	
  Provision in Case of Consolidation, Merger or Sale
  of Assets

  	
  74

  
	
  Section 14.10

  	
  Duties of Trustee Regarding Conversion

  	
  75

  
	
  Section 14.11

  	
  Repayment of Certain Funds upon Conversion

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 SUBORDINATION OF
  SECURITIES

  	
  76

  
	
   

  	
   

  
	
  Section 15.1

  	
  Agreement of Subordination

  	
  76

  
	
  Section 15.2

  	
  Payments to Holders

  	
  76

  
	
  Section 15.3

  	
  Subrogation of Securities

  	
  79

  
	
  Section 15.4

  	
  Authorization to Effect Subordination

  	
  80

  
	
  Section 15.5

  	
  Notice to Trustee

  	
  80

  
	
  Section 15.6

  	
  Trustee’s Relation to Senior Debt

  	
  81

  
	
  Section 15.7

  	
  No Impairment of Subordination

  	
  81

  
	
  Section 15.8

  	
  Certain Conversions/Exchanges Deemed Payment

  	
  81

  
	
  Section 15.9

  	
  Article Applicable to Paying Agents

  	
  82

  
	
  Section 15.10

  	
  Senior Debt Entitled to Rely

  	
  82

  
	
  Section 15.11

  	
  Reliance on Judicial Order or Certificate of
  Liquidating Agent

  	
  82

  
	
  Section 15.12

  	
  Trust Monies Not Subordinated

  	
  83

  



 


iv

















 


QuickLogic Corporation


 


Certain Sections of this
Indenture relating to Sections 3.10 through 3.18, inclusive, of the Trust
Indenture Act of 1939:


 


	
  Section 310

  	
  (a)(1)

  	
  6.9

  
	
   

  	
  (a)(2)

  	
  6.9

  
	
   

  	
  (a)(3)

  	
  Not Applicable

  
	
   

  	
  (a)(4)

  	
  Not Applicable

  
	
   

  	
  (b)

  	
  6.8, 6.10

  
	
  Section 311

  	
  (a)

  	
  6.13

  
	
   

  	
  (b)

  	
  6.13

  
	
  Section 312

  	
  (a)

  	
  7.1, 7.2

  
	
   

  	
  (b)

  	
  7.2

  
	
   

  	
  (c)

  	
  7.2

  
	
  Section 313

  	
  (a)

  	
  7.3

  
	
   

  	
  (b)

  	
  7.3

  
	
   

  	
  (c)

  	
  7.3

  
	
   

  	
  (d)

  	
  7.3

  
	
  Section 314

  	
  (a)

  	
  7.4

  
	
   

  	
  (a)(4)

  	
  1.1, 10.4

  
	
   

  	
  (b)

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
  1.2

  
	
   

  	
  (c)(2)

  	
  1.2

  
	
   

  	
  (c)(3)

  	
  Not Applicable

  
	
   

  	
  (d)

  	
  Not Applicable

  
	
   

  	
  (e)

  	
  1.2

  
	
  Section 315

  	
  (a)

  	
  6.1

  
	
   

  	
  (b)

  	
  6.2

  
	
   

  	
  (c)

  	
  6.1

  
	
   

  	
  (d)

  	
  6.1

  
	
   

  	
  (e)

  	
  5.14

  
	
  Section 316

  	
  (a)

  	
  1.1

  
	
   

  	
  (a)(1)(A)

  	
  5.2, 5.12

  
	
   

  	
  (a)(1)(B)

  	
  5.13

  
	
   

  	
  (a)(2)

  	
  Not Applicable

  
	
   

  	
  (a)(2)

  	
  Not Applicable

  
	
   

  	
  (b)

  	
  5.8

  
	
   

  	
  (c)

  	
  1.4

  
	
  Section 317

  	
  (a)(1)

  	
  5.3

  
	
   

  	
  (a)(2)

  	
  5.4

  
	
   

  	
  (b)

  	
  10.3

  
	
  Section 318

  	
  (a)

  	
  1.7

  



 


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


 

















 


INDENTURE, dated as of
                    ,
20    , between QuickLogic Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the “Company”), having its principal executive office at 1277 Orleans Drive,
Sunnyvale, California 94089, and                                 ,
as Trustee (herein called the “Trustee”).


 


RECITALS
OF THE COMPANY


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured subordinated debentures, notes or
other evidences of indebtedness (herein called the “Securities”), to be issued
in one or more series as provided in this Indenture. 


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE 1



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.1            Definitions.


 


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


 


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


 


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


 


(3)           all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such
accounting principles in the United States of America as are generally accepted
at the date of such computation;


 


(4)           all references to “$” refer to the lawful currency of
the United States of America;


 

















 


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


 


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


 


“Act,” when used with
respect to any Holder, has the meaning specified in Section 1.4.


 


“Additional Interest” has
the meaning specified in Section 5.2(b).


 


“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.


 


“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act
on behalf of the Trustee to authenticate Securities of one or more series.


 


“Board of Directors”
means either the board of directors of the Company or any duly authorized
committee of that board empowered to act for it with respect to this Indenture.


 


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


 


“Business Day,” when used
with respect to any Place of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or executive order to
close.


 


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


 


“Common Stock” includes
any stock of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject
to redemption by the Company; provided, however, subject to the
provisions of Section 14.9, shares issuable upon conversion of Securities
shall include only shares of the class designated as Common Stock of the
Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided, further,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such


 


2

















 


reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.


 


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


 


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


 


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


 


“Corporate Trust Office”
means the corporate trust office of the Trustee at
                            ,
Attention:
                            ,
or such other office, designated by the Trustee by written notice to the Company,
at which at any particular time its corporate trust business shall be
administered.


 


“corporation” means a
corporation, association, company, joint-stock company or business trust.


 


“Covenant Defeasance” has
the meaning specified in Section 13.3.


 


“Defaulted Interest” has
the meaning specified in Section 3.7.


 


“Defeasance” has the
meaning specified in Section 13.2.


 


“Depositary” means, with
respect to Securities of any series issuable in whole or in part in the form of
one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated
by Section 3.1.


 


“Designated Senior Debt”
means the Company’s obligations under any particular Senior Debt in which the
instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Company is a party)
expressly provides that such Senior Debt shall be “Designated Senior Debt” for
purposes of this Indenture (provided that
such instrument, agreement or other document may place limitations and
conditions on the right of such Senior Debt to exercise the rights of
Designated Senior Debt).  If any payment
made to any holder of any Designated Senior Debt or its Representative with
respect to such Designated Senior Debt is rescinded or must otherwise be
returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the


 


3

















 


Company or otherwise, the
reinstated Indebtedness of the Company arising as a result of such rescission
or return shall constitute Designated Senior Debt effective as of the date of
such rescission or return.


 


“euro” or “euros” means
the currency adopted by those nations participating in the third stage of the
economic and monetary union provisions of the Treaty on European Union, signed
at Maastricht on February 7, 1992.


 


“European Economic Area”
means the member nations of the European Economic Area pursuant to the Oporto
Agreement on the European Economic Area dated May 2, 1992, as amended.


 


“European Union” means
the member nations of the European Union established by the Treaty of European
Union, signed at Maastricht on February 2, 1992, which amended the Treaty
of Rome establishing the European Community.


 


“Event of Default” has
the meaning specified in Section 5.1.


 


“Exchange Act” means the
Securities Exchange Act of 1934 and any statute successor thereto, in each case
as amended from time to time.


 


“Expiration Date” has the
meaning specified in Section 1.4.


 


“Foreign Government
Obligation” means with respect to Securities of any series which are not
denominated in the currency of the United States of America (x) any
security which is (i) a direct obligation of the government which issued
or caused to be issued the currency in which such security is denominated and
for the payment of which obligations its full faith and credit is pledged or,
with respect to Securities of any series which are denominated in euros, a
direct obligation of any member nation of the European Union for the payment of
which obligation the full faith and credit of the respective nation is pledged
so long as such nation has a credit rating at least equal to that of the
highest rated member nation of the European Economic Area, or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of a government specified in clause (i) above the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the such government, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any Foreign Government
Obligation which is specified in clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any Foreign Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Foreign Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.


 


“Global
Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.4 (or such legend as
may be specified as contemplated by Section 3.1 for such Securities).


 


4
















 


“Holder” means a Person
in whose name a Security is registered in the Security Register.


 


“Indebtedness” means,
with respect to any Person, and without duplication, whether absolute or
contingent, secured or unsecured, due or to become due, (a) all indebtedness,
obligations and other liabilities (contingent or otherwise) of such Person
evidenced by a credit or loan agreement, note, bond, debenture, or other
written obligation (whether or not the recourse of the lender is to the whole
of the assets of such person or to only a portion thereof) or for money
borrowed (including obligations of such Person in respect of overdrafts,
foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments); (b) all obligations and
liabilities (contingent or otherwise) of such Person evidenced by a note or
similar instrument given in connection with the acquisition of any businesses,
properties or assets of any kind; (c) all obligations and liabilities
(contingent or otherwise) in respect of leases of such Person required, in
conformity with generally accepted accounting principles, to be accounted for
as capitalized lease obligations on the balance sheet of such Person and all
obligations and other liabilities (contingent or otherwise) or as lessee under
any leases or related documents for facilities, capital equipment or related
assets, whether or not capitalized, entered into or leased for financing purposes;
(d) all obligations of such Person (contingent or otherwise) with respect
to interest rate and currency swaps, caps, floors, collars, hedge agreements,
forward contracts or similar agreements or arrangements; (e) all
obligations and other liabilities (contingent or otherwise) of such Person with
respect to letters of credit, bankers’ acceptances or similar facilities,
including reimbursement obligations with respect to the foregoing; (f) all
obligations and liabilities of such Person or assumed as the deferred purchase
price of property or services, but excluding trade accounts payable and accrued
liabilities arising in the ordinary course of business; (g) all
obligations of the type referred to in (a) through (f) above of
another Person the payment of which, in either case, such Person has assumed or
guaranteed or for which such Person is responsible or liable directly or
indirectly, jointly or severally, as obligor, guarantor or otherwise, or which
are secured by a lien on such Person’s property; and (h) any and all
renewals, extensions, modifications, replacements, restatements and refundings
of, or, any indebtedness or obligation issued in exchange for, any such
indebtedness or obligation of the kind described in clauses (a) through (g) above.


 


“Indenture” means this
instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.  The term “Indenture” shall also include the
terms of particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is
acting as Trustee under this Indenture due to the appointment of one or more
separate Trustees for any one or more separate series of Securities,
“Indenture” shall mean, with respect to such series of Securities for which any
such Person is Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities for which such Person is
Trustee established as contemplated by Section 3.1, exclusive, however, of
any


 


5

















 


provisions or terms which
relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee, but to which such person, as such Trustee, was not a party; provided,
further that in the event that this Indenture is supplemented or amended
by one or more indentures supplemental hereto which are only applicable to
certain series of Securities, the term “Indenture” for a particular series of
Securities shall only include the supplemental indentures applicable thereto.


 


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


 


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


 


“Investment Company Act”
means the Investment Company Act of 1940 and any statute successor thereto, in
each case as amended from time to time.


 


“Maturity,” when used
with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, repurchase at the option of the Holder, upon redemption or
otherwise.


 


“Notice of Default” means
a written notice of the kind specified in Section 5.1(4).


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the Chief Executive Officer, the President or a Vice President, and by
the principal financial officer, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.  One of the officers signing an
Officers’ Certificate given pursuant to Section 10.4 shall be the
principal executive, financial or accounting officer of the Company.


 


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


 


“Original Issue Discount
Security” means any Security that provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.


 


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


 


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


 


6

















 


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


 


(3)           Securities as to which Defeasance has been effected
pursuant to Section 13.2; and


 


(4)           Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;


 


provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date, (A)
the principal amount of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be the amount of the principal thereof which
would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 5.2, (B) if, as of such
date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by Section 3.1,
(C) the principal amount of a Security denominated in one or more non-U.S.
dollar currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 3.1, of the principal amount of such
Security (or, in the case of a Security described in clause (A) or (B)
above, of the amount determined as provided in such clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee knows to be
so owned shall be so disregarded. 
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.


 


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


 


“Payment Blockage Notice”
has the meaning specified in Section 15.2.


 


7

















 


“Person” means any
individual, corporation, limited liability company, partnership, joint venture,
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
where the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered
under Section 3.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.


 


“Record Date” means any
Regular Record Date or Special Record Date.


 


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


 


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


 


“Regular Record Date” for
the interest payable on any Interest Payment Date on the Securities of any
series means the date specified for that purpose as contemplated by Section 3.1.


 


“Reporting Default” has
the meaning specified in Section 5.2(b).


 


“Representative” means
the (a) indenture trustee or other trustee, agent or representative for
any Senior Debt or (b) with respect to any Senior Debt that does not have
any such trustee, agent or other representative, (i) in the case of such
Senior Debt issued pursuant to an agreement providing for voting arrangements
as among the holders or owners of such Senior Debt, any holder or owner of such
Senior Debt acting with the consent of the required persons necessary to bind
such holders or owners of such Senior Debt and (ii) in the case of all
other such Senior Debt, the holder or owner of such Senior Debt.


 


“Responsible Officer”
means any officer or authorized representative of the Trustee within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular matter,
any other officer of the Trustee to whom such matter is referred because of
such officer’s knowledge and familiarity with the particular subject.


 


“Securities” has the
meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.


 


“Securities Act” means
the Securities Act of 1933 and any statute successor thereto, in each case as
amended from time to time.


 


8

















 


“Security Register” and
“Security Registrar” have the respective meanings specified in Section 3.5.


 


“Senior Debt” means the
principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowable as a claim in any such
proceeding) and rent payable on or in connection with, and all fees, costs,
expenses and other amounts accrued or due on or in connection with,
Indebtedness of the Company, whether outstanding on the date of this Indenture
or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
the Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the case
of any particular Indebtedness the instrument creating or evidencing the same
or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities or
expressly provides that such Indebtedness is “pari
passu” or “ junior” to the
Securities.  Notwithstanding the
foregoing, the term Senior Debt shall not include any Indebtedness of the
Company to any Subsidiary of the Company. 
If any payment made to any holder of any Senior Debt or its
Representative with respect to such Senior Debt is rescinded or must otherwise
be returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the reinstated Indebtedness of the
Company arising as a result of such rescission or return shall constitute
Senior Debt effective as of the date of such rescission or return.


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.7.


 


“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 the principal of such Security or such installment of principal or
interest is due and payable.


 


“Subsidiary” means a
Person of which at least a majority of the outstanding voting stock having the
power to elect a majority of the board of directors of such Person (in the case
of a corporation) is, or of which at least a majority of the equity interests
(in the case of a Person which is not a corporation) are, at the time owned, directly
or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. 
For the purposes of this definition, “voting stock” means stock or
similar interests to the Company which ordinarily has or have voting power for
the election of directors or persons performing similar functions, whether at
all times or only so long as no senior class of stock or other interests has or
have such voting power by reason of any contingency.


 


“Trust Indenture Act” means
the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act”
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.


 


“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


 


9

















 


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


 


“Vice President,” when
used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”


 


Section 1.2            Compliance Certificates and
Opinions.


 


Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act.  Each such certificate or opinion shall be
given in the form of an Officers’ Certificate, if to be given by an officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.


 


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


 


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


 


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


 


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


 


10

















 


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


 


Section 1.3            Form of Documents Delivered
to Trustee.


 


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


 


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


 


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


 


Section 1.4            Acts of Holders; Record Dates.


 


Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders 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.  The Trustee shall promptly deliver to the
Company copies of all such instrument or instruments delivered to the
Trustee.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


The fact and date of the
execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him or
her the execution thereof.  Where such execution


 


11

















 


is by a signer acting in
a capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority.  The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.


 


The ownership of
Securities shall be proved by the Security Register.


 


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


 


The Company may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give, make or take any request, demand,
authorization, direction, vote, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders
of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. 
Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.


 


The Trustee may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2,
(iii) any request to institute proceedings referred to in Section 5.7(2) or
(iv) any direction referred to in Section 5.12, in each case with
respect to Securities of such series.  If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date.  Nothing in this paragraph shall be


 


12

















 


construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company’s expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.6.


 


With respect to any
record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to
time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.


 


Without limiting the
foregoing, a Holder entitled hereunder to take any action hereunder with regard
to any particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed agents each
of which may do so pursuant to such appointment with regard to all or any part
of such principal amount.


 


Section 1.5            Notices, etc., to Trustee and Company.  Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,


 


(1)           the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing (or by facsimile transmissions, provided that oral confirmation of
receipt shall have been received) to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Services, or


 


(2)           the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, personally
delivered or sent via overnight courier to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, Attention: Chief Financial Officer.


 


13

















 


Section 1.6            Notice to Holders; Waiver.


 


Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or delivered by hand or overnight courier, to each
Holder affected by such event, at its address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.  Neither the failure to mail or deliver by
hand or overnight courier any notice, nor any defect in any notice so mailed or
delivered by hand or overnight courier, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice.  Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.


 


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


 


Whenever under this
Indenture the Trustee is required to provide any notice by mail, in all cases
the Trustee may alternatively provide notice by overnight courier, electronic
transmission or by facsimile, with confirmation of transmission.


 


Section 1.7            Conflict with Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under the Trust Indenture Act to be a part of and govern this
Indenture, the latter provision shall control. 
If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act, which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 


14
















 


Section 1.8            Effect of
Headings and Table of Contents.


 


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


 


Section 1.9            Successors
and Assigns.


 


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


 


Section 1.10         Separability
Clause.


 


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


 


Section 1.11         Benefits of
Indenture.


 


Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, the holders of Senior Debt
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.


 


Section 1.12         Governing
Law.


 


THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 1.13         Legal
Holidays.


 


In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security or
the last date on which a Holder has the right to convert a Security at a
particular conversion price or conversion rate, as the case may be, shall not
be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any
Security which specifically states that such provision shall apply in lieu of
this Section)) payment of interest or principal (and premium, if any) or, if
applicable to a particular series of Securities, conversion need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, at the Stated Maturity or on
such last day for conversion, as the case may be.


 


Section 1.14         Indenture
and Securities Solely Corporate Obligations.


 


No recourse for the
payment of the principal of or premium, if any, or interest on any Security, or
for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental 


 


15

















 


indenture or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, agent, officer,
or director or subsidiary, as such, past, present or future, of the Company or
of any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.


 


Section 1.15         Indenture May
be Executed in Counterparts.


 


This instrument may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.


 


ARTICLE 2


 


SECURITY FORMS


 


Section 2.1            Forms
Generally.


 


The Securities of each
series shall be in substantially the form set forth in this Article, or in such
other form as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing
such Securities, as evidenced by their execution thereof.  If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities. 
Any such Board Resolution or record of such action shall have attached
thereto a true and correct copy of the form of Security referred to therein
approved by or pursuant to such Board Resolution.


 


The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.


 


Section 2.2            Form of Face
of Security.


 


[INSERT
ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]


 


16

















 


QUICKLOGIC
CORPORATION


 


	
  NO.

  	
  $

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CUSIP:

  	
   

  



 


QuickLogic Corporation, a
corporation duly organized and existing under the laws of Delaware (herein
called the “Company,” which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to                     
                               ,
or registered assigns, the principal sum of                                               dollars
on                     
[if the Security is to bear interest prior to
Maturity, insert — , and to pay interest thereon from                        
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on                         
and                     
in each year, commencing                            ,
at the rate of              %
per annum, until the principal hereof is paid or made available for payment [if applicable, insert — , provided that any principal and
premium, and any such installment of interest, which is overdue shall bear
interest at the rate of              %
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand].  The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the              or
             
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.  Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].


 


[If the
Security is not to bear interest prior to Maturity, insert — The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of            %
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment.  Interest on any
overdue principal or premium shall be payable on demand.  Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the rate of            %
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. 
Interest on any overdue interest shall be payable on demand.] Payment 


 


17

















 


of the principal of (and
premium, if any) and [if applicable, insert — any
such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in                                
, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable, insert —; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].


 


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


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.


 


	
  Dated:

  	
   

  	
   

  	
  QUICKLOGIC CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


[Form of Trustee’s
Certificate of Authentication]


 


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


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
				



 


Section 2.3            Form of
Reverse of Security.


 


This Security is one of a
duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an
Indenture, dated as of                         , 20     (herein called the “Indenture,” which term
shall have the meaning assigned to it in such instrument), between the Company
and                                         , as
Trustee (herein called the “Trustee,” which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture and all
indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Debt and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series 


 


18

















 


designated on the face
hereof [if applicable, insert — , limited in aggregate
principal amount to $                         ].


 


[If
applicable, insert — The Securities of this series are subject to
redemption upon not less than [if applicable, insert — 30]
days’ notice by mail, [if applicable, insert
— (1) on                            in
any year commencing with the year            and
ending with the year            
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after                         ,
20    ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert —
on or before                      ,         %,
and if redeemed] during the 12-month period beginning                 
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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


 


[If applicable,
insert —The Securities of this series are subject to redemption upon
not less than [if applicable, insert — 30] days’ notice by mail, (1) on                   
in any year commencing with the year          
and ending with the year          
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after               ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below:  If redeemed during the 12-month period
beginning                     
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price For 

  Redemption Through 

  Operation of the Sinking Fund

  	
   

  	
  Redemption Price For Redemption

  Otherwise Than Through

  Operation of the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a
Redemption Price equal to       % of the
principal amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to 


 


19

















 


such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]


 


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


 


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


 


[If the
Security is subject to redemption of any kind, insert — In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]


 


[If
applicable, insert — The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]


 


[If the
Security is convertible into Common Stock of the Company, insert —
Subject to the provisions of the Indenture, the Holder of this Security is
entitled, at its option, at any time on or before [insert date]
(except that, in case this Security or any portion hereof shall be called for
redemption, such right shall terminate with respect to this Security or portion
hereof, as the case may be, so called for redemption at the close of business
on the first Business Day next preceding the date fixed for redemption as
provided in the Indenture unless the Company defaults in making the payment due
upon redemption), to convert the principal amount of this Security (or any
portion hereof which is $1,000 or an integral multiple thereof), into fully
paid and non-assessable shares (calculated as to each conversion to the nearest
1/100th of a share) of the Common Stock of the Company, as said shares shall be
constituted at the date of conversion, at the conversion price of $                           principal amount of Securities for each share
of Common Stock, or at the adjusted conversion price in effect at the date of
conversion determined as provided in the Indenture, upon surrender of this
Security, together with the conversion notice hereon duly executed, to the
Company at the designated office or agency of the Company in                         , accompanied (if so
required by the Company) by instruments of transfer, in form satisfactory to
the Company and to the Trustee, duly executed by the Holder or by its duly
authorized attorney in writing.


 


20

















 


Such surrender shall, if
made during any period beginning at the close of business on a Regular Record
Date and ending at the opening of business on the Interest Payment Date next
following such Regular Record Date (unless this Security or the portion being
converted shall have been called for redemption on a Redemption Date during the
period beginning at the close of business on a Regular Record Date and ending
at the opening of business on the first Business Day after the next succeeding
Interest Payment Date, or if such Interest Payment Date is not a Business Day,
the second such Business Day), also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the case of
a conversion after the Regular Record Date next preceding any Interest Payment
Date and on or before such Interest Payment Date, to the right of the Holder of
this Security (or any Predecessor Security) of record at such Regular Record
Date to receive an installment of interest (with certain exceptions provided in
the Indenture), no adjustment is to be made on conversion for interest accrued
hereon or for dividends on shares of Common Stock issued on conversion. The
Company is not required to issue fractional shares upon any such conversion,
but shall make adjustment therefor in cash on the basis of the current market
value of such fractional interest as provided in the Indenture.  The conversion price is subject to adjustment
as provided in the Indenture.  In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the sale of substantially all of the
assets of the Company, the Indenture shall be amended, without the consent of
any Holders of Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or sale by a holder of the
number of shares of Common Stock into which this Security might have been
converted immediately prior to such consolidation, merger or sale (assuming
such holder of Common Stock failed to exercise any rights of election and
received per share the kind and amount received per share by a plurality of
non-electing shares). In the event of conversion of this Security in part only,
a new Security or Securities for the unconverted portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.]


 


[If the
Security is convertible into other securities of the Company, specify the
conversion features.]


 


The indebtedness
evidenced by this Security is, to the extent and in the manner provided in the
Indenture, subordinate and subject in right of payment to the prior payment in
full of all Senior Debt of the Company, and this Security is issued subject to
such provisions of the Indenture with respect thereto.  Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.


 


[If the
Security is not an Original Issue Discount Security, insert — If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]


 


21

















 


[If the
Security is an Original Issue Discount Security, insert — If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.  Such amount shall be equal to
— insert formula for determining the amount.  Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company’s obligations in
respect of the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]


 


The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of more
than 50% in principal amount of the Securities at the time Outstanding of each
series to be affected.  The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. 
Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.


 


As provided in and
subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or
for the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the Trustee written
notice of a continuing Event of Default with respect to the Securities of this
series, the Holders of not less than a majority in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity.  The foregoing shall not apply
to any suit instituted by the Holder of this Security for the enforcement of
any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.


 


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


 


As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium 


 


22

















 


and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.


 


The Securities of this
series are issuable only in registered form without coupons in denominations of
$           and any integral multiple thereof.  As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.


 


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


 


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


 


All terms used in this
Security that are defined in the Indenture shall have the meanings assigned to
them in the Indenture.


 


Section 2.4            Form of
Legend for Global Securities.


 


Unless otherwise
specified as contemplated by Section 3.1 for the Securities evidenced thereby,
every Global Security authenticated and delivered hereunder shall bear a legend
in substantially the following form:


 


THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF.  THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


Section 2.5            Reserved.


 


Section 2.6            Form of
Conversion Notice.


 


Conversion notices shall
be in substantially the following form:


 


23

















 


To QuickLogic
Corporation:


 


The undersigned owner of
this Security hereby irrevocably exercises the option to convert this Security,
or portion hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of the Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon the conversion, together with any check in
payment for fractional shares and any Securities representing any unconverted
principal amount hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below.  If this Notice is being delivered on a date
after the close of business on a Regular Record Date and prior to the opening
of business on the related Interest Payment Date (unless this Security or the
portion thereof being converted has been called for redemption on a Redemption
Date during the period beginning at the close of business on a Regular Record
Date and ending at the opening of business on the first Business Day after the
next succeeding Interest Payment Date, or if such Interest Payment Date is not
a Business Day, the second such Business Day), this Notice is accompanied by
payment, in funds acceptable to the Company, of an amount equal to the interest
payable on such Interest Payment Date of the principal of this Security to be
converted.  If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect hereto. 
Any amount required to be paid by the undersigned on account of interest
accompanies this Security.


 


Principal Amount to be
Converted


(in an integral
multiple of $1,000, if less than all):


U.S. $                            .


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature(s) must be
  guaranteed by an eligible guarantor institution (banks, stockbrokers, savings
  and loan associations and credit unions with membership in an approved
  signature guarantee medallion program) pursuant to Securities and Exchange Commission
  Rule 17Ad-15.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature Guaranty

  



 


Fill in for registration
of shares of Common Stock and Security if to be issued otherwise than to the
registered Holder.


 


	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Social Security or
  Other Taxpayer

  
	
   

  	
   

  	
  Identification Number

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Address)

  	
   

  	
   

  



 


24

















 


	
   

  	
   

  	
   

  
	
  Please print Name and
  Address

  	
   

  	
   

  
	
  (including zip code)

  	
   

  	
   

  



 


[The above conversion
notice is to be modified, as appropriate, for conversion into other securities
or property of the Company.]


 


ARTICLE 3


 


THE SECURITIES


 


Section 3.1            Amount
Unlimited; Issuable in Series.


 


The aggregate principal
amount of Securities that may be authenticated and delivered under this
Indenture is unlimited.  The Securities
may be issued in one or more series. 
There shall be established in or pursuant to a Board Resolution and,
subject to Section 3.3, set forth, or determined in the manner provided, in an
Officers’ Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,


 


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


 


(2)           any limit upon the
aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 3.4,
3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to Section 3.3,
are deemed never to have been authenticated and delivered hereunder);


 


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


 


(4)           the date or dates on
which the principal of any Securities of the series is payable;


 


(5)           the rate or rates (which
may be fixed or variable) at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date
(or the method for determining the dates and rates);


 


(6)           the place or places
where the principal of and any premium and interest on any Securities of the
series shall be payable;


 


25
















 


(7)           the period or periods
within which, the price or prices at which and the terms and conditions upon
which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be evidenced;


 


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


 


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


 


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


 


(11)         if other than the
currency of the United States of America, the currency, currencies or currency
units in which the principal of or any premium or interest on any Securities of
the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose,
including for purposes of the definition of “Outstanding” in Section 1.1;


 


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


 


(13)         if other than the entire
principal amount thereof, the portion of the principal amount of any Securities
of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;


 


(14)         if the principal amount
payable at the Stated Maturity of any Securities of the series will not be
determinable as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such Securities as
of any such date for any purpose thereunder or hereunder, including the
principal amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);


 


26

















 


(15)         if applicable, that the
Securities of the series, in whole or any specified part, shall be defeasible
pursuant to Section 13.2 or Section 13.3 or both such Sections, or any other
defeasance provisions applicable to any Securities of the series, and, if other
than by a Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;


 


(16)         if applicable, the terms
of any right to convert or exchange Securities of the series into shares of
Common Stock of the Company or other securities or property;


 


(17)         if applicable, that any
Securities of the series shall be issuable in whole or in part in the form of
one or more Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth
in Section 2.4 and any circumstances in addition to or in lieu of those set
forth in clause (2) of the last paragraph of Section 3.5 in which any such
Global Security may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;


 


(18)         any addition to or change
in the Events of Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and payable pursuant to Section 5.2;


 


(19)         any addition to or change
in the covenants set forth in Article 10 which applies to Securities of the
series;


 


(20)         any Authenticating
Agents, Paying Agents, Security Registrars or such other agents necessary in
connection with the issuance of the Securities of such series, including,
without limitation, exchange rate agents and calculation agents;


 


(21)         if applicable, the terms
of any security that will be provided for a series of Securities, including any
provisions regarding the circumstances under which collateral may be released
or substituted;


 


(22)         if applicable, the terms
of any guaranties for the Securities and any circumstances under which there
may be additional obligors on the Securities;


 


(23)         any addition to or change
in or modification to the subordinated provisions of this Indenture relating to
the Securities of that series (including the provisions of Article 15), or
different subordination provisions, including a different definition of “Senior
Debt” or “Designated Senior Debt,” will apply to Securities of the series; and


 


(24)         any other terms of the
series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.1(5)).


 


27

















 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.3) set forth, or determined in the manner
provided, in the Officers’ Certificate referred to above or in any such
indenture supplemental hereto.


 


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


 


The Securities shall be
subordinated in right of payment to Senior Debt as provided in Article 15.


 


Section 3.2            Denominations.


 


The Securities of each
series shall be issuable only in registered form without coupons and only in
such denominations as shall be specified as contemplated by Section 3.1.  In the absence of any such specified
denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.


 


Section 3.3            Execution,
Authentication, Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its principal financial
officer, its President or one of its Vice Presidents, attested by its
Treasurer, its Secretary or one of its Assistant Treasurers or Assistant
Secretaries.  The signature of any of
these officers on the Securities may be manual or facsimile.


 


Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.


 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities.  If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, a copy of such Board Resolution,
the Officers’ Certificate setting forth the terms of the series and an Opinion
of Counsel, with such Opinion of Counsel stating,


 


28

















 


(1)           if the form of such
Securities has been established by or pursuant to Board Resolution as permitted
by Section 2.1, that such form has been established in conformity with the
provisions of this Indenture;


 


(2)           if the terms of such
Securities have been established by or pursuant to Board Resolution as
permitted by Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture; and


 


(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
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles.


 


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


 


Notwithstanding the
provisions of Section 3.1 and of the preceding paragraph, if all Securities of
a series are not to be originally issued at one time, it shall not be necessary
to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1
or the Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.


 


Each Security shall be
dated the date of its authentication.


 


No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.  Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in Section 3.9, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


Neither the Company nor
the Trustee shall have any responsibility for any defect in the CUSIP number
that appears on any Security, check, advice of payment or redemption notice,
and any such document may contain a statement to the effect that CUSIP numbers
have been assigned by an independent service for convenience of reference and
that neither the Company nor the Trustee shall be liable for any inaccuracy in
such numbers.


 


29

















 


Section 3.4            Temporary
Securities.


 


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


 


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


 


Section 3.5            Registration;
Registration of Transfer and Exchange.


 


The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to
as the “Security Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities.  The
Trustee is hereby appointed “Security Registrar” for the purpose of registering
Securities and transfers of Securities as herein provided.


 


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


 


At the option of the
Holder, Securities of any series may be exchanged for other Securities of the
same series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.  All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.


 


30

















 


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


 


No service charge shall
be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 3.4,
9.6 or 11.7 not involving any transfer.


 


If the Securities of any
series (or of any series and specified tenor) are to be redeemed in part, the
Company shall not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and specified tenor,
as the case may be) during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 11.3 and ending at the close
of business on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.


 


The provisions of clauses
(1), (2), (3) and (4) below shall apply only to Global Securities:


 


(1)           Each Global Security
authenticated under this Indenture shall be registered in the name of the
Depositary designated for such Global Security or a nominee thereof and delivered
to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this
Indenture.


 


(2)           Notwithstanding any
other provision in this Indenture, no Global Security may be exchanged in whole
or in part for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 3.1.


 


(3)           Subject to clause (2) above,
any exchange of a Global Security for other Securities may be made in whole or
in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such
Global Security shall direct.


 


(4)           Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security or any portion thereof, whether pursuant
to this Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.


 


31

















 


Section 3.6            Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security
is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


If there shall be
delivered to the Company and the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


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


 


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


 


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


 


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


 


Section 3.7            Payment of
Interest; Interest Rights Preserved.


 


Except as otherwise
provided as contemplated by Section 3.1 with respect to any series of Securities,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.


 


Any interest on any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such 


 


32

















 


Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:


 


(1)           The Company may elect
to make payment of any Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided.  Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. 
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner
set forth in Section 1.6, not less than 10 days prior to such Special Record
Date.  Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).


 


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


 


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


 


Subject to the provisions
of Section 14.2, in the case of any Security (or any part thereof) which is
converted after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security the principal of (or premium, if
any, on) which shall become due and payable, whether at Stated Maturity or by
declaration of acceleration or otherwise prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall 


 


33

















 


be payable on such
Interest Payment Date notwithstanding such conversion and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or any one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence or in Section
14.2, in the case of any Security (or any part thereof) which is converted,
interest whose Stated Maturity is after the date of conversion of such Security
(or such part thereof) shall not be payable.


 


Section 3.8            Persons
Deemed Owners.


 


Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.7)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


Section 3.9            Cancellation.


 


All Securities
surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it.  The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee.  No Securities shall be authenticated in lieu of
or in exchange for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. 
All canceled Securities held by the Trustee shall be cancelled and
disposed of in accordance with its customary procedures.


 


Section 3.10         Computation
of Interest.


 


Except as otherwise
specified as contemplated by Section 3.1 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.


 


ARTICLE 4


 


SATISFACTION AND DISCHARGE


 


Section 4.1            Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for),


 


34
















 


and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when


 


(1)           either


 


(A)          all Securities
theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Trustee or the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for cancellation;
or


 


(B)           all such Securities not
theretofore delivered to the Trustee for cancellation


 


(i)            have become due and
payable, or


 


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


 


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


 


and the Company, in the
case of (i), (ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose money in an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;


 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph of Section 10.3
shall survive.


 


35

















 


Section 4.2            Application
of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the Trustee
pursuant to Section 4.1 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 any premium and interest for whose payment such
money has been deposited with the Trustee.


 


ARTICLE 5


 


REMEDIES


 


Section 5.1            Events of
Default.


 


“Event of Default,”
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be occasioned by the provisions of Article 15 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless in the Board Resolution,
supplemental indenture or Officers’ Certificate establishing such series, it is
provided that such series shall not have the benefit of said Event of Default:


 


(1)           default in the payment
of any interest upon any Security of that series when it becomes due and
payable, and continuance of such default for a period of 90 days; or


 


(2)           default in the payment
of the principal of or any premium on any Security of that series at its
Maturity; or


 


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


 


(4)           default in the
performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or breach
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% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


 


(5)           the entry by a court
having jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or 


 


36

















 


(B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 90 consecutive days; or


 


(6)           the commencement by the
Company of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of
any such action; or


 


(7)           any other Event of
Default provided with respect to Securities of that series in the Board
Resolution, supplemental indenture or Officers’ Certificate establishing that
series.


 


Section 5.2            Acceleration
of Maturity; Rescission and Annulment.


 


(a)           Unless the Board
Resolution, supplemental indenture or Officers’ Certificate establishing such
series provides otherwise, if an Event of Default (other than an Event of
Default specified in Section 5.1(5) or 5.1(6)) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof), and premium, if any,
together with accrued and unpaid interest, if any, thereon, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal amount (or
specified amount), and premium, if any, together with accrued and unpaid
interest, if any, thereon, shall become immediately due and payable.  If an Event of Default specified in Section 5.1(5)
or 5.1(6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof), and premium, if any, together with accrued and unpaid interest, if
any, thereon, shall automatically, and without any declaration or 


 


37

















 


other action on the part
of the Trustee or any Holder, become immediately due and payable.  Any payments by the Company on the Securities
following any such acceleration will be subject to the subordination provisions
of Article 15 to the extent provided therein.


 


(b)           Notwithstanding the
foregoing, at the election of the Company, the sole remedy with respect to an
Event of Default for the failure by the Company to comply with its obligations
under Section 314(a)(1) of the Trust Indenture Act relating to the Company’s
failure to file any documents or reports that the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or of its
covenants set forth in Section 7.4 (any such Event of Default, a “Reporting
Default”), shall for the first 180 calendar days after the occurrence of such
Reporting Default consist exclusively of the right to receive additional
interest (the “Additional Interest”) on the Securities at an annual rate equal
to (i) 0.25% of the principal amount of the Securities for the first 90
calendar days after the occurrence of such Reporting Default and (ii) 0.50% of
the principal amount of the Securities from the 91st day to, and including, the
180th day after the occurrence of such Reporting Default.  If the Company so elects, the Additional
Interest shall accrue on all Outstanding Securities from and including the date
on which such Reporting Default first occurs until such violation is cured or
waived and shall be payable as provided in Section 3.7.  On the 181st day after such Reporting Default
(if such violation is not cured or waived prior to such 181st calendar day),
then the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding securities may declare the principal of and accrued and unpaid
interest on all such Securities to be due and payable immediately.


 


If the Company elects to
pay the Additional Interest as the sole remedy for the Reporting Default, the
Company shall notify in writing, by a certificate, the Holders, the Paying
Agent and the Trustee of such election at any time on or before the close of
business on the first Business Day following the date on which such Event of
Default first occurs.  Unless and until a
Responsible Officer of the Trustee receives at the Corporate Trust Office such
a certificate, the Trustee may assume without inquiry that Additional Interest
is not payable.  The Company shall pay
the Additional Interest semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date following the date of such
Reporting Default, in the same manner as described on the face of the Security.


 


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


 


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


 


(A)          all overdue interest on
all Securities of that series,


 


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


 


38

















 


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


 


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


 


(2)           all Events of Default
with respect to Securities of that series, other than the non-payment of the
principal of Securities of that series that have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 5.13.


 


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


 


Section 5.3            Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants
that if


 


(1)           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


 


(2)           default is made in the
payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof, 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 any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on 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 an Event of Default
with respect to Securities of any series occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


Section 5.4            Trustee May File
Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. 
In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or 


 


39

















 


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
6.7.  No provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors’ or other similar
committee.


 


Section 5.5            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 5.6            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 any premium 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 6.7;


 


SECOND:  Subject to Article 15, to the payment of the
amounts then due and unpaid for principal of and any premium, if any, 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
any premium, if any, and interest, respectively; and


 


THIRD:  The balance, if any, to the Company or any
other Person or Persons entitled thereto.


 


Section 5.7            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


 


40

















 


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


 


(2)           the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;


 


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


 


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


 


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


 


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


 


Section 5.8            Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert.


 


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
any premium and (subject to Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), to convert such Securities in accordance
with Article 14 to the extent that such right to convert is applicable to such
Security, 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 5.9            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.


 


41

















 


Section 5.10         Rights and
Remedies Cumulative.


 


Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, 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 5.11         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 (subject
to the limitations contained in this Indenture) or by the Holders, as the case
may be.


 


Section 5.12         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


 


(1)           such direction shall
not be in conflict with any rule of law or with this Indenture and the Trustee
shall not have determined that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other series, not
taking part in such direction; and


 


(2)           the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with
such direction or this Indenture.


 


Section 5.13         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


 


(1)           a default in the
payment of the principal of or any premium or interest on any Security of such
series as and when the same shall become due and payable by the terms thereof,
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest, principal and premium,
if any, has been deposited with the Trustee), or


 


42

















 


(2)           to the extent such
right is applicable to such Security, a failure by the Company on request to
convert any Security into Common Stock; or


 


(3)           in respect of a
covenant or provision hereof which under Article 9 cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected.


 


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 5.14         Undertaking
for Costs.


 


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, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or in any suit for the enforcement of the right
to convert any Security in accordance with Article 14.


 


Section 5.15         Waiver of
Usury, Stay or Extension Laws.


 


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


 


ARTICLE 6


 


THE TRUSTEE


 


Section 6.1            Certain
Duties and Responsibilities.


 


The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act.  Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.  Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.


 


43

















 


Section 6.2            Notice of
Defaults.


 


If a default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
that except in the case of a default in the payment of principal of (or
premium, if any) or interest on any Securities of such series or in the payment
of any sinking fund installment or any conversion right applicable to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the holders of Securities of such series; provided, further,
however, that in the case of any default of the character specified in Section
5.1(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term “default” means any event that is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.


 


Except with respect to Section
10.1, the Trustee shall have no duty to inquire as to the performance of the
Company with respect to the covenants contained in Article 10.  In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to Sections 5.1(1), 5.1(2) and 5.1(3) (defaults in
payments on the Securities) or (ii) any Default or Event of Default of which
the Trustee shall have received written notification or obtained actual
knowledge.


 


Delivery of reports, information
and documents to the Trustee under Section 7.4 is for informational purposes
only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
their covenants hereunder (as to which the Trustee is entitled to rely
conclusively on Officers’ Certificates).


 


Section 6.3            Certain
Rights of Trustee.


 


Subject to the provisions
of Section 6.1:


 


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


 


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


 


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


 


44
















 


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


 


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


 


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


 


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


 


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


 


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


 


(9)           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;


 


(10)         the Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and the
Indenture; and


 


(11)         the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall 


 


45

















 


be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.


 


Section 6.4            Not Responsible for Recitals or Issuance of Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness.  The Trustee makes no
representations as to the validity, sufficiency or priority of this Indenture
or of the Securities.  Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.


 


Section 6.5            May Hold Securities and Act as Trustee under Other Indentures.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.


 


Subject to the
limitations imposed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from becoming and acting as trustee under other indentures
under which other securities, or certificates of interest of participation in
other securities, of the Company are outstanding in the same manner as if it
were not Trustee hereunder.


 


Section 6.6            Money Held in Trust.


 


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


 


Section 6.7            Compensation and Reimbursement.


 


The Company agrees:


 


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


 


(2)           except as otherwise expressly
provided herein, to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and


 


46

















 


(3)           to indemnify the Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.  The obligations of the
Company under this Section 6.7 to compensate or indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such. 
The obligation of the Company under this Section shall survive the
satisfaction and discharge of this Indenture.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 5.1(5) or
Section 5.1(6) hereof occurs, the expenses and the compensation for
the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any applicable
bankruptcy, insolvency, reorganization or similar law.


 


Section 6.8            Conflicting Interests.


 


If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act and there is an Event of Default under the Securities of that series, the
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.  To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.


 


Section 6.9            Corporate Trustee Required;
Eligibility.


 


There shall at all times be
one (and only one) Trustee hereunder with respect to the Securities of each
series, which may be Trustee hereunder for Securities of one or more other
series.  Each Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has (or
if the Trustee is a member of a bank holding company system, its bank holding
company has) a combined capital and surplus of at least $50,000,000.  If any such Person or bank holding company
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such Person or bank holding company shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
If at any time the Trustee with respect to the Securities of any series
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


Section 6.10         Resignation and Removal; Appointment of
Successor.


 


No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 6.11.  The Trustee may resign at any time 


 


47

















 


with respect to the
Securities of one or more series by giving written notice thereof to the
Company.  If the instrument of acceptance
by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.


 


The Trustee may be
removed at any time with respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.


 


If at any time:


 


(1)           the Trustee shall fail to comply with
Section 6.8 after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or


 


(2)           the Trustee shall cease to be
eligible under Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or


 


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


 


then, in any such case, (A) the
Company by a Board Resolution may remove the Trustee with respect to all
Securities, or (B) subject to Section 5.14, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.


 


If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 6.11.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by 


 


48

















 


Section 6.11, the
retiring Trustee may petition, or any Holder who has been a bona fide Holder of
a Security of such series for at least six months may petition, on behalf of
himself and all others similarly situated, any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.


 


The Company shall give
notice of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 1.6.  Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.


 


Section 6.11         Acceptance of Appointment by Successor.


 


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


 


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


 


49

















 


Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates.


 


Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.


 


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


 


Section 6.12         Merger, Conversion, Consolidation or
Succession to Business.


 


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


 


Section 6.13         Preferential Collection of Claims
Against Company.


 


If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).


 


Section 6.14         Appointment of Authenticating Agent.


 


The Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. 
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating 


 


50

















 


Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent.  Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having (or if the Authenticating Agent is a member of a
bank holding company system, its bank holding company has) a combined capital
and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. 
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
an Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.


 


Any corporation into
which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.


 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company.  The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 1.6 to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve.  Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. 
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.


 


If an appointment with
respect to one or more series is made pursuant to this Section 6.12, the
Securities of such series may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


51

















 


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


 


	
   

  	
   

  	
  ,

  
	
   

  	
  As
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
				



 


ARTICLE 7



HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.1            Company to Furnish Trustee Names and
Addresses of Holders.


 


The Company will furnish
or cause to be furnished to the Trustee


 


(1)           semi-annually, not later than 15 days
after the Regular Record Date for each respective series of Securities, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders of Securities of each series as of such Regular Record Date, as
the case may be, or if there is no Regular Record Date for such series of
Securities, semi-annually, and


 


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


 


provided that no such list need be furnished by the
Company to the Trustee so long as the Trustee is acting as Security Registrar.


 


Section 7.2            Preservation of Information;
Communications to Holders.


 


The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and addresses
of Holders contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.


 


The rights of Holders to
communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.  Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the 


 


52

















 


Trustee nor any agent of
either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.


 


Section 7.3            Reports by Trustee.


 


The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.


 


Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted
no later than July 15 in each calendar year, commencing with the first July 15
after the first issuance of Securities pursuant to this Indenture.


 


A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company.  The
Company will notify the Trustee when any Securities are listed on any stock
exchange.


 


Section 7.4            Reports by Company.


 


Any information,
documents or other reports that the Company shall file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is filed with the Commission; provided
that any such information, documents or reports filed or furnished with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
(or EDGAR) system or the “IDEA” system (or any successor electronic filing
system) shall be deemed to be filed with the Trustee as of the time such
information, documents or reports are filed or furnished via EDGAR or IDEA.


 


ARTICLE 8



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.1            Company May Consolidate, etc.,
Only on Certain Terms.


 


The Company shall not
consolidate with or merge into any other Person (other than a Subsidiary of the
Company) (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person (other than a Subsidiary of the
Company), unless:


 


(1)           in case the Company shall consolidate
with or merge into another Person (in a transaction in which the Company is not
the surviving corporation) or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, limited liability
company, partnership, trust 


 


53

















 


or other business entity,
shall be organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed and the conversion rights shall be
provided for in accordance with Article 14, if applicable, or as otherwise
specified pursuant to Section 3.1, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee, by the Person
(if other than the Company) formed by such consolidation or into which the
Company shall have been merged or by the Person which shall have acquired the
Company’s assets;


 


(2)           immediately after giving effect to
such transaction and treating any indebtedness which becomes an obligation of
the Company or any Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and


 


(3)           the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.


 


Section 8.2            Successor Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 8.1, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE 9



SUPPLEMENTAL
INDENTURES


 


Section 9.1            Supplemental Indentures Without
Consent of Holders.


 


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


 


54
















 


(1)           to evidence the succession of another
Person to the Company, or successive successions, and the assumption by any
such successor of the covenants of the Company herein and in the Securities in
compliance with Article 8; or


 


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


 


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


 


(4)           to add to or change any of the
provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in uncertificated form; or


 


(5)           to add to, change or eliminate any of
the provisions of this Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or


 


(6)           to secure the Securities, including
provisions regarding the circumstances under which collateral may be released
or substituted; or


 


(7)           to add or provide for a guaranty of
the Securities or additional obligors on the Securities; or


 


(8)           to establish the form or terms of
Securities of any series as permitted by Sections 2.1 and 3.1; or


 


(9)           to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11; or


 


(10)         to cure any ambiguity, to correct or
supplement any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture, provided that 


 


55

















 


such action pursuant to
this clause (10) shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or


 


(11)         to supplement any of the provisions of
the Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Articles 4 and 13, provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series or any other series
of Securities in any material respect.


 


Section 9.2            Supplemental Indentures with Consent
of Holders.


 


With the consent of the
Holders of a majority in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,


 


(1)           change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security which
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment or the
coin or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or modify the provisions of this Indenture
with respect to the subordination of such series of Securities in a manner
materially adverse to the Holders of Securities of such series, or, in the case
of Securities of any series that are convertible into Securities or other
securities of the Company, adversely affect the right of Holders to convert any
of the Securities of such series other than as provided in or pursuant to this
Indenture, or


 


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


 


(3)           modify any of the provisions of this
Section, Section 5.13 or Section 10.8, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause
shall not be 


 


56

















 


deemed to require the
consent of any Holder with respect to changes in the references to “the
Trustee” and concomitant changes in this Section and Section 10.8, or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.1(8), or


 


(4)           if applicable, make any change that
adversely affects the right to convert any security as provided in Article 14
or pursuant to Section 3.1 (except as permitted by Section 9.1(9)) or
decrease the conversion rate or increase the conversion price of any such security.


 


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


 


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


 


Section 9.3            Execution of Supplemental
Indentures.


 


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
(subject to Sections 6.1 and 6.3) shall be fully protected in relying upon,
an Officers’ Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture.  The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


 


Section 9.4            Effect of Supplemental Indentures.


 


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


 


Section 9.5            Conformity with Trust Indenture Act.


 


Every supplemental
indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.


 


Section 9.6            Reference in Securities to
Supplemental Indentures.


 


Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form 


 


57

















 


approved by the Trustee
as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.


 


Section 9.7            Subordination Unimpaired.


 


No provision in any
supplemental indenture that affects the superior position of the holders of
Senior Debt shall be effective against holders of Senior Debt.


 


ARTICLE 10



COVENANTS


 


Section 10.1         Payment of Principal, Premium and
Interest.


 


The Company covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of and any premium and interest on the Securities
of that series in accordance with the terms of the Securities and this
Indenture.


 


Section 10.2         Maintenance of Office or Agency.


 


The Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.  Unless otherwise provided in a supplemental
indenture or pursuant to Section 3.1 hereof, the Place of Payment for any
series of Securities shall be the Corporate Trust Office of the Trustee.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


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Section 10.3         Money for Securities Payments to be
Held in Trust.


 


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


 


Whenever the Company
shall have one or more Paying Agents for any series of Securities, it will, on
or prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.


 


The Company will cause
each Paying Agent for any series of Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.


 


The Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such 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 or any premium or interest on any Security of any
series and remaining unclaimed for a period ending on the earlier of the date
that is ten Business Days prior to the date such money would escheat to the
State or two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in 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 


 


59

















 


of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.


 


Section 10.4         Statement by Officers as to Default.


 


The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers’ Certificate, stating whether
or not to the best knowledge of the signers thereof the Company is in default
in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.  The
Company will give the Trustee prompt written notice of any change of its fiscal
year.


 


Section 10.5         Existence.


 


Subject to Article 8,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence.


 


Section 10.6         Maintenance of Properties.


 


The Company will cause
all properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as, and to the extent,
in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any
material respect to the Holders.


 


Section 10.7         Payment of Taxes and Other Claims.


 


The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the
Company, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company; provided,
however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim (i) whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings or (ii) if the failure to pay or discharge would
not have a material adverse effect on the assets, business, operations,
properties or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole.


 


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Section 10.8         Waiver of Certain Covenants.


 


Except as otherwise
specified as contemplated by Section 3.1 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 pursuant to Section 3.1(19), 9.1(2), 9.1(7), 10.6
or 10.7 for the benefit of the Holders of such series if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver 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 any such term, provision or condition
shall remain in full force and effect.


 


ARTICLE 11



REDEMPTION OF SECURITIES


 


Section 11.1         Applicability of Article.


 


Securities of any series
that are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.1 for such Securities) in accordance with this Article.


 


Section 11.2         Election to Redeem; Notice to Trustee.


 


The election of the Company
to redeem any Securities shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 3.1 for such Securities.  In case of any redemption at the election of
the Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed.  In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with
such restriction.


 


Section 11.3         Selection by Trustee of Securities to
Be Redeemed.


 


If less than all the
Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by lot, or in the Trustee’s discretion, on a pro-rata basis,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such 


 


61

















 


Security.  If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects
only a single Security), the particular Securities to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.


 


If any Security selected
for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. 
Securities that have been converted during a selection of Securities to
be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection.


 


The Trustee shall
promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial
redemption as aforesaid, the principal amount thereof to be redeemed.


 


The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting
only a single Security, whether such Security is to be redeemed in whole or in
part.  In the case of any such redemption
in part, the unredeemed portion of the principal amount of the Security shall
be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.


 


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


 


Section 11.4         Notice of Redemption.


 


Notice of redemption
shall be given electronically or by first-class mail, postage prepaid, mailed
not fewer than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to each Holder of
Securities to be redeemed, at its address appearing in the Security Register.


 


All notices of redemption
shall state:


 


(1)           the Redemption Date,


 


(2)           the Redemption Price (including
accrued interest, if any),


 


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


 


62

















 


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


 


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


 


(6)           the place or places where each such
Security is to be surrendered for payment of the Redemption Price,


 


(7)           if applicable, the conversion price
or conversion rate, as the case may be, the date on which the right to convert
the principal of the Securities or the portions thereof to be redeemed will
terminate, and the place or places where such Securities may be surrendered for
conversion,


 


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


 


(9)           the CUSIP number or numbers and/or
common code(s) of the Security being redeemed.


 


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


 


Section 11.5         Deposit of Redemption Price.


 


On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.3) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.


 


If any Security called
for redemption is converted, any money deposited with the Trustee or with a
Paying Agent or so segregated and held in trust for the redemption of such
Security shall (subject to the right of any Holder of such Security to receive
interest as provided in the last paragraph of Section 3.7) be paid to the
Company on Company Request, or if then held by the Company, shall be discharged
from such trust.


 


Section 11.6         Securities Payable on Redemption Date.


 


Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price 


 


63

















 


and accrued interest)
such Securities shall cease to bear interest. 
Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.7.


 


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


 


Section 11.7         Securities Redeemed in Part.


 


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


 


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 Securities of any
series except as otherwise specified as contemplated by Section 3.1 for
such Securities.


 


The minimum amount of any
sinking fund payment provided for by the terms of any Securities is herein
referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of such Securities is herein
referred to as an “optional sinking fund payment.”  If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. 
Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.


 


Section 12.2         Satisfaction of Sinking Fund Payments
with Securities.


 


The Company (1) may
deliver Outstanding Securities of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities of a series which
have been redeemed


 


64
















 


either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. 
The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities
so to be redeemed, for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.


 


Section 12.3         Redemption of Securities for Sinking Fund.


 


Not fewer than 60 days
prior to each sinking fund payment date for any Securities, the Company will
deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing sinking fund payment for such Securities pursuant to the terms of
such Securities, 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 Securities pursuant to Section 12.2 and will also
deliver to the Trustee any Securities to be so delivered.  Not fewer than 30 days prior to 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 11.3
and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 11.4.  Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.


 


ARTICLE 13



DEFEASANCE
AND COVENANT DEFEASANCE


 


Section 13.1         Company’s Option to Effect Defeasance or Covenant Defeasance.


 


The Company may elect, at
its option at any time, to have Section 13.2 or Section 13.3 applied
to any Securities or any series of Securities, as the case may be, designated
pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2
or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1
and upon compliance with the conditions set forth below in this Article.  Any such election shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 3.1
for such Securities.


 


Section 13.2         Defeasance and Discharge.


 


Upon the Company’s
exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall
be deemed to have been discharged from its obligations, and the provisions of Article 15
shall cease to be effective, with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 13.4
are satisfied (hereinafter called “Defeasance”).  For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness


 


65

















 


represented by such
Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder:


 


(1)           the rights of Holders of such Securities to receive,
solely from the trust fund described in Section 13.4 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due,


 


(2)           the Company’s obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, and, if
applicable, Article 14,


 


(3)           the rights, powers, trusts, duties and immunities of
the Trustee hereunder, and


 


(4)           this Article.


 


Subject to compliance
with this Article, the Company may exercise its option (if any) to have this Section applied
to any Securities notwithstanding the prior exercise of its option (if any) to
have Section 13.3 applied to such Securities.


 


Section 13.3         Covenant Defeasance.


 


Upon the Company’s
exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be,


 


(1)           the Company shall be released from its obligations
under Sections 10.6 and 10.7 and any covenants provided pursuant to
Sections 3.1(19), 9.1(2) or 9.1(7) for the benefit of the
Holders of such Securities,


 


(2)           the occurrence of any event specified in Section 5.1(4) (with
respect to any of Sections 10.6 and 10.7 and any such covenants provided
pursuant to Section 3.1(19), 9.1(2) or 9.1(7)) and the occurrence of
any Event of Default specified pursuant to Section 3.1 shall be deemed not
to be or result in an Event of Default, and


 


(3)           the provisions of Article 15 shall cease to be
effective,


 


in each case with respect
to such Securities or any series of Securities as provided in this Section on
and after the date the conditions set forth in Section 13.4 are satisfied
(hereinafter called “Covenant Defeasance”). 
For this purpose, such Covenant Defeasance means that, with respect to
such Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Section 5.1(4) and
the occurrence of any Event of Default specified pursuant to Section 3.1)
or Article 15, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision


 


66

















 


herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.


 


Section 13.4         Conditions to Defeasance or Covenant Defeasance.


 


The following shall be
the conditions to the application of Section 13.2 or Section 13.3 to
any Securities or any series of Securities, as the case may be:


 


(1)           The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the Holders of such Securities,


 


(A)          in the case of Securities of a series denominated in
currency of the United States of America,


 


(i)            cash in currency of the United States of America in an
amount, or


 


(ii)           U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, an amount in cash, or


 


(iii)          a combination thereof, or


 


(B)           in the case of Securities of a series denominated in
currency other than that of the United States of America,


 


(i)            cash in the currency in which such series of Securities
is denominated in an amount, or


 


(ii)           Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, an amount in cash, or


 


(iii)          a combination thereof,


 


in each case
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, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the


 


67

















 


respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities.


 


(2)           In the event of an election to have Section 13.2
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that


 


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


 


(B)           since the date of this instrument, there has been a
change in the applicable Federal income tax law,


 


in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.


 


(3)           In the event of an election to have Section 13.3
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.


 


(4)           The Company shall have delivered to the Trustee an
Officers’ Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange, will
be delisted as a result of such deposit.


 


(5)           No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.1(5) and
(6), at any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 90th day).


 


(6)           Such Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).


 


68

















 


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


 


(8)           Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration thereunder.


 


(9)           At the time of such deposit,


 


(A)          no default in the payment of any principal of or
premium or interest on any Senior Debt shall have occurred and be continuing,


 


(B)           no event of default with respect to any Senior Debt
shall have resulted in such Senior Debt becoming, and continuing to be, due and
payable prior to the date on which it would otherwise have become due and
payable (unless payment of such Senior Debt has been made or duly provided
for), and


 


(C)           no other event of default with respect to any Senior
Debt shall have occurred and be continuing permitting (after notice or lapse of
time or both) the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the date on which
it would otherwise have become due and payable.


 


(10)         The Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.


 


Section 13.5         Deposited Money, U.S. Government
Obligations and Foreign Government Obligations to be Held in Trust;
Miscellaneous Provisions.


 


Subject to the provisions
of the last paragraph of Section 10.3, all money, U.S. Government
Obligations and Foreign Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 13.6, the Trustee and any such other trustee
are referred to collectively as the “Trustee”) pursuant to Section 13.4 in
respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by
law.  Money, U.S. Government Obligations
and Foreign Government Obligations so held in trust shall not be subject to the
provisions of Article 15.


 


69

















 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations or Foreign Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.


 


Anything in this Article to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money, U.S. Government Obligations
or Foreign Government Obligations held by it as provided in Section 13.4
with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.


 


Section 13.6         Reinstatement.


 


If the Trustee or the
Paying Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 13.2
or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 13.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Company makes any payment
of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.


 


ARTICLE 14



CONVERSION OF SECURITIES


 


Section 14.1         Applicability of Article.


 


The provisions of this Article shall
be applicable to the Securities of any series which are convertible into shares
of Common Stock of the Company, and the issuance of such shares of Common Stock
upon the conversion of such Securities, except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series.


 


Section 14.2         Exercise of Conversion Privilege.


 


In order to exercise a
conversion privilege, the Holder of a Security of a series with such a
privilege shall surrender such Security to the Company at the office or agency
maintained for that purpose pursuant to Section 10.2, accompanied by a
duly executed conversion notice to the Company substantially in the form set
forth in Section 2.6 stating that the Holder elects to convert


 


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such Security or a
specified portion thereof.  Such notice
shall also state, if different from the name and address of such Holder, the
name or names (with address) in which the certificate or certificates for
shares of Common Stock which shall be issuable on such conversion shall be
issued.  Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by or accompanied by instruments of transfer in forms satisfactory to
the Company and the Trustee duly executed by the Holder or its attorney duly
authorized in writing; and Securities so surrendered for conversion (in whole
or in part) during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date
(excluding Securities or portions thereof called for redemption during the
period beginning at the close of business on a Regular Record Date and ending
at the opening of business on the first Business Day after the next succeeding
Interest Payment Date, or if such Interest Payment Date is not a Business Day,
the second such Business Day) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such Holder notwithstanding
the conversion of such Security, subject to the provisions of Section 3.7
relating to the payment of Defaulted Interest by the Company.  As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution and,
subject to Section 3.3, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto setting forth the terms of such series of Security, and the
surrender of such Security in accordance with such reasonable regulations as
the Company may prescribe, the Company shall issue and shall deliver, at the
office or agency at which such Security is surrendered, to such Holder or on
its written order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such Security (or specified
portion thereof), in accordance with the provisions of such Board Resolution,
Officers’ Certificate or supplemental indenture, and cash as provided therein
in respect of any fractional share of such Common Stock otherwise issuable upon
such conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and
such payment, if required, shall have been received in proper order for
conversion by the Company and such Security shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such Security and shall
have instructed the Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled to convert such
Security on such date, in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Security as such Security Holder shall
cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon such
conversion shall be deemed to have become the Holder or Holders of record of
the shares represented thereby.  Except
as set forth above and subject to the final paragraph of Section 3.7, no
payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities (or any part thereof) surrendered for
conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.


 


In the case of any
Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of 


 


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authorized denominations,
in aggregate principal amount equal to the unconverted portion of such
Security.


 


Section 14.3         No Fractional Shares.


 


No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series.  If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered.  If, except for the provisions of this Section 14.3,
any Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such Holder
an amount in cash equal to the current market value of such fractional share
computed, (i) if such Common Stock is listed or admitted to unlisted trading
privileges on a national securities exchange or market, on the basis of the
last reported sale price regular way on such exchange or market on the last
trading day prior to the date of conversion upon which such a sale shall have
been effected, or (ii) if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange or
market, on the basis of the average of the bid and asked prices of such Common
Stock in the over-the-counter market, on the last trading day prior to the date
of conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. 
For purposes of this Section, “trading day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than any day on which the Common
Stock is not traded on the New York Stock Exchange, or if the Common Stock is
not traded on the New York Stock Exchange, on the principal exchange or market
on which the Common Stock is traded or quoted.


 


Section 14.4         Adjustment of Conversion Price or Conversion Rate.


 


The conversion price or
conversion rate, as the case may be, of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassifications, combinations or similar
transactions in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such series.


 


Whenever the conversion
price or conversion rate, as the case may be, is adjusted, the Company shall
compute the adjusted conversion price or conversion rate, as the case may be,
in accordance with terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers’ Certificate setting forth the adjusted
conversion price or conversion rate, as the case may be, and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate
shall forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2 and, if different, with
the Trustee.  The Company shall forthwith
cause a notice setting forth the adjusted conversion price or conversion rate,
as the case may be, to be sent electronically or mailed, first class postage
prepaid, to each Holder of


 


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Securities of such series
at its address appearing on the Security Register and to any conversion agent
other than the Trustee.


 


Section 14.5         Notice of Certain Corporate Actions.


 


In case:


 


(1)           the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings (other than a dividend for which approval of any shareholders
of the Company is required) that would require an adjustment pursuant to Section 14.4;
or


 


(2)           the Company shall authorize the granting to all or
substantially all of the holders of its Common Stock of rights, options or
warrants to subscribe for or purchase any shares of capital stock of any class
or of any other rights (other than any such grant for which approval of any
shareholders of the Company is required); or


 


(3)           of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding shares of
Common Stock, or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any shareholders of the Company is
required), or of the sale of all or substantially all of the assets of the
Company; or


 


(4)           of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;


 


then the Company shall
cause to be filed with the Trustee, and shall cause to be sent to all Holders
as they shall appear in the Security Register, at least 20 days (or 10 days in
any case specified in clause (1) or (2) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on which
a record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the
date on which such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash
or other property deliverable upon such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up.  If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.


 


Section 14.6         Reservation of Shares of Common Stock.


 


The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of


 


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Securities, the full
number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.


 


Section 14.7         Payment of Certain Taxes upon Conversion.


 


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


 


Section 14.8         Nonassessability.


 


The Company covenants
that all shares of its Common Stock that may be issued upon conversion of
Securities will upon issue in accordance with the terms hereof be duly and
validly issued and fully paid and nonassessable.


 


Section 14.9         Provision in Case of Consolidation, Merger or Sale of Assets.


 


In case of any consolidation
or merger of the Company with or into any other Person, any merger of another
Person with or into the Company (other than a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any conveyance, sale, transfer or
lease of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security of a series
then Outstanding that is convertible into Common Stock of the Company shall
have the right thereafter (which right shall be the exclusive conversion right
thereafter available to said Holder), during the period such Security shall be
convertible, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease, assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or merged with or into or which
merged into or with the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be (a “Constituent Person”), or an Affiliate of
a Constituent Person and (ii) failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer, or
lease is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease by others than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been


 


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exercised (“Non-electing
Share”), then for the purpose of this Section 14.9 the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by the holders of each Non-electing Share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-electing Shares). 
Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article or in accordance with the terms of the supplemental
indenture or Board Resolutions setting forth the terms of such
adjustments.  The above provisions of
this Section 14.9 shall similarly apply to successive consolidations,
mergers, conveyances, sales, transfers or leases.  Notice of the execution of such a
supplemental indenture shall be given by the Company to the Holder of each
Security of a series that is convertible into Common Stock of the Company as
provided in Section 1.6 promptly upon such execution.


 


Neither the Trustee nor
any conversion agent, if any, shall be under any responsibility to determine
the correctness of any provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property or cash receivable by Holders of Securities of a series convertible
into Common Stock of the Company upon the conversion of their Securities after
any such consolidation, merger, conveyance, transfer, sale or lease or to any
such adjustment, but may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, an Opinion of
Counsel with respect thereto, which the Company shall cause to be furnished to
the Trustee upon request.


 


Section 14.10       Duties of Trustee Regarding Conversion.


 


Neither the Trustee nor
any conversion agent shall at any time be under any duty or responsibility to
any Holder of Securities of any series that is convertible into Common Stock of
the Company to determine whether any facts exist which may require any
adjustment of the conversion price or conversion rate, as the case may be, or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same.  Neither the Trustee nor
any conversion agent shall be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock of the Company, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Securities and neither the Trustee nor any conversion agent
makes any representation with respect thereto. 
Subject to the provisions of Section 6.1, neither the Trustee nor
any conversion agent shall be responsible for any failure of the Company to
issue, transfer or deliver any shares of its Common Stock or stock certificates
or other securities or property upon the surrender of any Security for the
purpose of conversion or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.


 


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Section 14.11       Repayment of Certain Funds upon Conversion.


 


Any funds which at any
time shall have been deposited by the Company or on its behalf with the Trustee
or any other paying agent for the purpose of paying the principal of, and
premium, if any, and interest, if any, on any of the Securities (including, but
not limited to, funds deposited for the sinking fund referred to in Article 12
hereof and funds deposited pursuant to Article 13 hereof) and which shall
not be required for such purposes because of the conversion of such Securities
as provided in this Article 14 shall after such conversion be repaid to
the Company by the Trustee upon the Company’s written request.


 


ARTICLE 15



SUBORDINATION OF SECURITIES


 


Section 15.1         Agreement of Subordination.


 


Except as otherwise
provided in a supplemental indenture or pursuant to Section 3.1, the
Company covenants and agrees, and each Holder of Securities issued hereunder by
its acceptance thereof likewise covenants and agrees, that all Securities shall
be issued subject to the provisions of this Article 15; and each Person
holding any Security, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees to be bound by such provisions.


 


The payment of the
principal of, premium, if any, and interest on all Securities (including, but
not limited to, the redemption price with respect to the Securities called for
redemption in accordance with Article 11 as provided in the Indenture)
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in full of
all Senior Debt, whether outstanding at the date of this Indenture or
thereafter incurred.


 


No provision of this Article 15
shall prevent the occurrence of any default or Event of Default hereunder.


 


Section 15.2         Payments to Holders.


 


No payment shall be made
with respect to the principal of, or premium, if any, or interest on the
Securities (including, but not limited to, the redemption price with respect to
the Securities to be called for redemption in accordance with Article 11
as provided in the Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 15.5, if:


 


(i)            a default in the payment of principal, premium, if
any, interest, rent or other obligations due on any Senior Debt occurs and is
continuing (or, in the case of Senior Debt for which there is a period of
grace, in the event of such a default that continues beyond the period of
grace, if any, specified in the instrument or lease evidencing such Senior
Debt) (a “Payment Default”),


 


76

















 


unless and until such
default shall have been cured or waived or shall have ceased to exist; or


 


(ii)           a default, other than a Payment Default, on any
Designated Senior Debt occurs and is continuing that then permits holders of
such Designated Senior Debt to accelerate its maturity and the Trustee receives
a notice of the default (a “Payment Blockage Notice”) from a holder of
Designated Senior Debt, a Representative of Designated Senior Debt or the
Company (a “Non-Payment Default”).


 


If the Trustee receives
any Payment Blockage Notice pursuant to clause (ii) above, no
subsequent Payment Blockage Notice shall be effective for purposes of this Section unless
and until at least 365 days shall have elapsed since the initial effectiveness
of the immediately prior Payment Blockage Notice.  No Non-Payment Default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.


 


The Company may and shall
resume payments on and distributions in respect of the Securities upon the
earlier of:


 


(1)           in the case of any Payment Default, the date upon
which the Payment Default is cured or waived or ceases to exist, or


 


(2)           in the case of a Non-Payment Default, the earlier of (a) the
date upon which such Non-Payment Default is cured, waived or ceases to exist or
(b) 179 days after the date on which the applicable Payment Blockage
Notice is received by the Trustee,


 


unless this Article 15
otherwise prohibits the payment or distribution at such time.


 


Upon any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, reorganization, liquidation,
receivership or other proceedings, or upon an assignment for the benefit of
creditors or any marshalling of the assets and liabilities of the Company, or
otherwise, all amounts due or to become due upon all Senior Debt shall first be
paid in full in cash or other payment satisfactory to the holders of such
Senior Debt, or payment thereof in accordance with its terms provided for in
cash or other payment satisfactory to the holders of such Senior Debt, before
any payment is made on account of the principal of, premium, if any, or
interest on the Securities (except payments made pursuant to Article 4
from monies deposited with the Trustee pursuant thereto prior to commencement
of proceedings for such dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or the marshalling of assets and
liabilities of the Company); and upon any such dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or bankruptcy, insolvency,
receivership or other proceeding, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of


 


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the Securities or the
Trustee would be entitled, except for the provision of this Article 15,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Securities or by the Trustee under
this Indenture if received by them or it and directed by the Company or a
Representative of Senior Debt, directly to the Representative or Representatives
of Senior Debt, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior Debt
in full, in cash or other payment satisfactory to the holders of such Senior
Debt, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt, before any payment or distribution or provision
therefor is made to the Holders of the Securities or to the Trustee.


 


For purposes of this Article 15,
the words, “cash, property or securities” shall not be deemed to include shares
of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in this Article 15 with respect to the Securities to the payment
of all Senior Debt which may at the time be outstanding; provided that (i) the
Senior Debt is assumed by the new corporation, if any, resulting from any
reorganization or readjustment, and (ii) the rights of the holders of
Senior Debt (other than leases which are not assumed by the Company or the new
corporation, as the case may be) are not, without the consent of such holders,
altered by such reorganization or readjustment. 
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions provided for
in Article 8 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.2 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 8.


 


In the event of the
acceleration of the Securities because of an Event of Default, no payment or
distribution shall be made to the Trustee or any Holder of Securities in
respect of the principal of, premium, if any, or interest on the Securities
(including, but not limited to, the redemption price with respect to the
Securities called for redemption in accordance with Article 11 as provided
in the Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section 15.5, until all
Senior Debt has been paid in full in cash or other payment satisfactory to the
holders of Senior Debt or such acceleration is rescinded in accordance with the
terms of this Indenture.  If payment of
the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt of the acceleration.


 


In the event that,
notwithstanding the foregoing provisions, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities (including, without limitation, by way of setoff or otherwise),
prohibited by the foregoing, shall be received by the Trustee or the Holders of
the Securities before all Senior Debt is paid in full in cash or other payment
satisfactory to the holders of such Senior Debt, or provision is made for such
payment thereof in accordance with its terms in cash or other payment
satisfactory to the holders of such


 


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Senior Debt, such payment
or distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of Senior Debt or their Representative or
Representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Debt remaining unpaid to the extent necessary to
pay all Senior Debt in full in cash or other payment satisfactory to the
holders of such Senior Debt, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.


 


Nothing in this Section 15.2
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.7.  This Section 15.2 shall be subject to the
further provisions of Section 15.5.


 


Section 15.3         Subrogation of Securities.


 


Subject to the payment in
full of all Senior Debt, the rights of the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article 15 (equally
and ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of Senior
Debt to receive payments or distributions of cash, property or securities of
the Company applicable to the Senior Debt until the principal, premium, if any,
and interest on the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of the Senior
Debt of any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article 15,
and no payment over pursuant to the provisions of this Article 15, to or
for the benefit of the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Debt; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders of the Securities pursuant to the subrogation provisions of this Article 15,
which would otherwise have been paid to the holders of Senior Debt shall be
deemed to be a payment by the Company to or for the account of the Securities.  It is understood that the provisions of this Article 15
are and are intended solely for the purposes of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of the Senior
Debt, on the other hand.


 


Nothing contained in this
Article 15 or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among the Company, its creditors other than the holders
of Senior Debt, and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders
of the Senior Debt, nor shall anything herein or therein prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this


 


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Article 15 of the
holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.


 


Upon any payment or
distribution of assets of the Company referred to in this Article 15, the
Trustee, subject to the provisions of Section 6.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon and all
other facts pertinent thereto or to this Article 15.


 


Section 15.4         Authorization to Effect Subordination.


 


Each Holder of a Security
by the holder’s acceptance thereof authorizes and directs the Trustee on the
holder’s behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 15 and appoints
the Trustee to act as the holder’s attorney-in-fact for any and all such
purposes.


 


Section 15.5         Notice to Trustee.


 


The Company shall give
prompt written notice in the form of an Officers’ Certificate to a Responsible
Officer of the Trustee and to any Paying Agent of any fact known to the Company
which would prohibit the making of any payment of monies to or by the Trustee
or any Paying Agent in respect of the Securities pursuant to the provisions of
this Article 15.  Notwithstanding
the provisions of this Article 15 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article 15,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office from the Company (in the
form of an Officers’ Certificate) or a Representative or a holder or holders of
Senior Debt or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 6.1,
shall be entitled in all respects to assume that no such facts exist; provided
that if on a date not fewer than two Business Days prior to the date upon which
by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of, or premium, if
any, or interest on any Security) the Trustee shall not have received, with
respect to such monies, the notice provided for in this Section 15.5,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary which may be received by it on or after such prior
date.


 


Notwithstanding anything
in this Article 15 to the contrary, nothing shall prevent any payment
by the Trustee to the Holders of monies deposited with it pursuant to Section 4.1,
and any such payment shall not be subject to the provisions of Section 15.1
or 15.2.


 


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The Trustee, subject to
the provisions of Section 6.1, shall be entitled to rely on the delivery
to it of a written notice by a Representative of Senior Debt (or a trustee on
behalf of such holder) to establish that such notice has been given by a
Representative or a trustee on behalf of any such holder or holders.  The Trustee shall not be required to make any
payment or distribution to or on behalf of a holder of Senior Debt pursuant to
this Article 15 unless it has received satisfactory evidence as to the
amount of Senior Debt held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article 15.


 


Section 15.6         Trustee’s Relation to Senior Debt.


 


The Trustee in its
individual capacity shall be entitled to all the rights set forth in this Article 15
in respect of any Senior Debt at any time held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.


 


With respect to the
holders of Senior Debt, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set forth in this Article 15,
and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee.  The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of Section 6.1,
the Trustee shall not be liable to any holder of Senior Debt (i) for any
failure to make any payments or distributions to such holders or (ii) if
it shall pay over or deliver to Holders of Securities, the Company or any other
Person money or assets to which any holder of Senior Debt shall be entitled by
virtue of this Article 15 or otherwise.


 


Section 15.7         No Impairment of Subordination.


 


No right of any present
or future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company, the Trustee or any
Holder of Securities with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.


 


Section 15.8         Certain Conversions/Exchanges Deemed Payment.


 


For the purposes of this Article 15
only, (1) the issuance and delivery of junior securities upon conversion
or exchange of Securities in accordance with Article 14 or otherwise
(except upon conversion of the Securities in accordance with their terms) shall
not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest on Securities or on account of
the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 14.3), property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such Security.  For the purposes of this


 


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Section 15.8, the
term “junior securities” means (a) shares of any stock of any class of the
Company, or (b) securities of the Company which are subordinated in right
of payment to all Senior Debt which may be outstanding at the time of issuance
or delivery of such securities to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article.  Nothing contained in this Article 15
or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of Securities, the right, which is absolute and unconditional,
of the Holder of any Security to convert such Security in accordance with Article 14.


 


Section 15.9         Article Applicable to Paying Agents.


 


If at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be
then acting hereunder, the term “Trustee” as used in this Article shall
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that the first
paragraph of Section 15.5 shall not apply to the Company or any Affiliate
of the Company if the Company or such Affiliate acts as Paying Agent.


 


The Trustee shall not be
responsible for the actions or inactions of any other Paying Agents (including
the Company if acting as its own Paying Agent) and shall have no control of any
funds held by such other Paying Agents.


 


Section 15.10       Senior Debt Entitled to Rely.


 


The holders of Senior
Debt (including, without limitation, Designated Senior Debt) shall have the
right to rely upon this Article 15, and no amendment or modification of
the provisions contained herein shall diminish the rights of such holders
unless such holders shall have agreed in writing thereto.


 


Section 15.11       Reliance on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or
distribution of assets of the Company referred to in this Article, the Trustee
and the Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or marshalling
of assets and liabilities of the Company or bankruptcy, insolvency,
receivership or other like proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.


 


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Section 15.12       Trust Monies Not Subordinated.


 


Notwithstanding anything
contained herein to the contrary, payments from money, U.S. Government
Obligations and/or Foreign Government Obligations held in trust under Article 4
or Article 13 by the Trustee for the payment of the principal of, premium,
if any, and interest on the Securities shall not be subordinated to the prior
payment in full of any Senior Debt of the Company or subject to the
restrictions set forth in this Article 15, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.


 


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


 


	
   

  	
  QUICKLOGIC CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                    

  	
  ,

  
	
   

  	
  as trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Title: