Exhibit 4.8


 


KNOLL, INC.


 


 


and


 


 


U.S. BANK NATIONAL ASSOCIATION,


 


 


as Trustee


 


 


SUBORDINATED INDENTURE


 


 


Dated as of August 21, 2009


 


 


Providing for the Issuance of

Subordinated Debt Securities in Series


 

















 


KNOLL, INC.


 


Reconciliation and Tie
between Trust Indenture Act of 1939

and Indenture Provisions (1)


 


	
   Trust
   Indenture Act Section

   	
    

   	
   Indenture Section

   
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 310

  	
  (a)(1)

  	
   

  	
  6.09

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  	
   

  
	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
  (a)(5)

  	
   

  	
  6.09

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.08, 6.10

  	
   

  
	
  Section 311

  	
  (a)

  	
   

  	
  6.13

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.13

  	
   

  
	
  Section 312

  	
  (a)

  	
   

  	
  7.01, 7.02

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.02

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.02

  	
   

  
	
  Section 313

  	
  (a)

  	
   

  	
  7.03

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.03

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.03

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.03

  	
   

  
	
  Section 314

  	
  (a)

  	
   

  	
  7.04

  	
   

  
	
   

  	
  (a)(4)

  	
   

  	
  10.04

  	
   

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
  1.02

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
  1.02

  	
   

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
  (e)

  	
   

  	
  1.02

  	
   

  



 

















 


	
   Trust
   Indenture Act Section

   	
    

   	
   Indenture Section

   
	
  Section 315

  	
  (a)

  	
   

  	
  6.01

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.02

  	
   

  
	
   

  	
  (c)

  	
   

  	
  6.01

  	
   

  
	
   

  	
  (d)

  	
   

  	
  6.01

  	
   

  
	
   

  	
  (e)

  	
   

  	
  5.14

  	
   

  
	
  Section 316

  	
  (a)

  	
   

  	
  1.01

  	
   

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.02, 5.12

  	
   

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
  (b)

  	
   

  	
  5.08

  	
   

  
	
   

  	
  (c)

  	
   

  	
  1.04

  	
   

  
	
  Section 317

  	
  (a)(1)

  	
   

  	
  5.03

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  5.04

  	
   

  
	
   

  	
  (b)

  	
   

  	
  10.03

  	
   

  
	
  Section 318

  	
  (a)

  	
   

  	
  1.07

  	
   

  



 






(1)  This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  
	
  ARTICLE I

  
	
  Definitions and Other Provisions of General
  Application

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Definitions

  	
  1

  
	
  SECTION 1.02

  	
  Compliance Certificates and Opinions

  	
  8

  
	
  SECTION 1.03

  	
  Form of Documents Delivered to Trustee

  	
  8

  
	
  SECTION 1.04

  	
  Acts of Holders; Record Dates

  	
  9

  
	
  SECTION 1.05

  	
  Notices, Etc., to Trustee and Company

  	
  11

  
	
  SECTION 1.06

  	
  Notice to Holders; Waiver

  	
  11

  
	
  SECTION 1.07

  	
  Conflict with Trust Indenture Act

  	
  12

  
	
  SECTION 1.08

  	
  Effect of Headings and Table of Contents

  	
  12

  
	
  SECTION 1.09

  	
  Successors and Assigns

  	
  12

  
	
  SECTION 1.10

  	
  Separability Clause

  	
  12

  
	
  SECTION 1.11

  	
  Benefits of Indenture

  	
  12

  
	
  SECTION 1.12

  	
  Governing Law and Waiver of Jury Trial

  	
  12

  
	
  SECTION 1.13

  	
  Legal Holidays

  	
  12

  
	
  SECTION 1.14

  	
  Computations

  	
  13

  
	
  SECTION 1.15

  	
  Counterparts; Facsimile

  	
  13

  
	
   

  
	
  ARTICLE II

  
	
  Security Forms

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  Forms Generally

  	
  13

  
	
  SECTION 2.02

  	
  Form of Legend for Global Securities

  	
  14

  
	
  SECTION 2.03

  	
  Form of Trustee’s Certificate of Authentication

  	
  14

  
	
   

  
	
  ARTICLE III

  
	
  The Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Creation of Securities in Amount Unlimited

  	
  14

  
	
  SECTION 3.02

  	
  Documents Required for Issuance of Each Series of
  Securities

  	
  15

  
	
  SECTION 3.03

  	
  Denominations

  	
  17

  
	
  SECTION 3.04

  	
  Execution, Delivery, Dating and Authentication

  	
  18

  
	
  SECTION 3.05

  	
  Temporary Securities

  	
  19

  
	
  SECTION 3.06

  	
  Registration, Registration of Transfer and Exchange

  	
  20

  
	
  SECTION 3.07

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  21

  
	
  SECTION 3.08

  	
  Payment of Interest; Interest Rights Preserved

  	
  22

  
	
  SECTION 3.09

  	
  Persons Deemed Owners

  	
  23

  
	
  SECTION 3.10

  	
  Cancellation

  	
  24

  
	
  SECTION 3.11

  	
  Computation of Interest

  	
  24

  
	
  SECTION 3.12

  	
  Depository

  	
  24

  
	
  SECTION 3.13

  	
  CUSIP Numbers

  	
  25

  



 

















 


	
  ARTICLE IV

  
	
  Satisfaction and Discharge

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  Satisfaction and Discharge of Indenture in Respect of any
  Series of Securities

  	
  25

  
	
  SECTION 4.02

  	
  Application of Trust Money

  	
  26

  
	
   

  
	
  ARTICLE V

  
	
  Remedies

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
  Events of Default

  	
  26

  
	
  SECTION 5.02

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  28

  
	
  SECTION 5.03

  	
  Collection of Indebtedness and Suits for Enforcement by
  Trustee

  	
  29

  
	
  SECTION 5.04

  	
  Trustee May File Proofs of Claim

  	
  30

  
	
  SECTION 5.05

  	
  Trustee May Enforce Claims Without Possession of
  Securities

  	
  30

  
	
  SECTION 5.06

  	
  Application of Money Collected

  	
  30

  
	
  SECTION 5.07

  	
  Limitation on Suits

  	
  31

  
	
  SECTION 5.08

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest

  	
  31

  
	
  SECTION 5.09

  	
  Restoration of Rights and Remedies

  	
  31

  
	
  SECTION 5.10

  	
  Rights and Remedies Cumulative

  	
  32

  
	
  SECTION 5.11

  	
  Delay or Omission Not Waiver

  	
  32

  
	
  SECTION 5.12

  	
  Control by Holders

  	
  32

  
	
  SECTION 5.13

  	
  Waiver of Past Defaults

  	
  32

  
	
  SECTION 5.14

  	
  Undertaking for Costs

  	
  33

  
	
  SECTION 5.15

  	
  Waiver of Stay or Extension Laws

  	
  33

  
	
   

  
	
  ARTICLE VI

  
	
  The Trustee

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Certain Duties and Responsibilities

  	
  33

  
	
  SECTION 6.02

  	
  Notice of Defaults

  	
  33

  
	
  SECTION 6.03

  	
  Certain Rights of Trustee

  	
  34

  
	
  SECTION 6.04

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  35

  
	
  SECTION 6.05

  	
  May Hold Securities

  	
  35

  
	
  SECTION 6.06

  	
  Money Held in Trust

  	
  35

  
	
  SECTION 6.07

  	
  Compensation and Reimbursement

  	
  35

  
	
  SECTION 6.08

  	
  Disqualification; Conflicting Interests

  	
  36

  
	
  SECTION 6.09

  	
  Corporate Trustee Required; Eligibility

  	
  37

  
	
  SECTION 6.10

  	
  Resignation and Removal; Appointment of Successor

  	
  37

  
	
  SECTION 6.11

  	
  Acceptance of Appointment by Successor

  	
  39

  
	
  SECTION 6.12

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  40

  
	
  SECTION 6.13

  	
  Preferential Collection of Claims Against Company

  	
  40

  
	
  SECTION 6.14

  	
  Appointment of Authenticating Agent

  	
  40

  



 


ii

















 


	
  ARTICLE VII

  
	
  Holders’ Lists and Reports by Trustee and Company

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
  Company to Furnish Trustee Names and Addresses of Holders

  	
  42

  
	
  SECTION 7.02

  	
  Preservation of Information; Communications to Holders

  	
  42

  
	
  SECTION 7.03

  	
  Reports by Trustee

  	
  42

  
	
  SECTION 7.04

  	
  Reports by Company

  	
  43

  
	
  ARTICLE VIII

  
	
  Consolidation, Merger, Conveyance or Transfer

  
	
   

  
	
  SECTION 8.01

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
  43

  
	
  SECTION 8.02

  	
  Successor Corporation Substituted

  	
  44

  
	
   

  
	
  ARTICLE IX

  
	
  Supplemental Indentures

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  Supplemental Indentures Without Consent of Holders

  	
  44

  
	
  SECTION 9.02

  	
  Supplemental Indentures with Consent of Holders

  	
  45

  
	
  SECTION 9.03

  	
  Execution of Supplemental Indentures

  	
  47

  
	
  SECTION 9.04

  	
  Effect of Supplemental Indentures

  	
  47

  
	
  SECTION 9.05

  	
  Conformity with Trust Indenture Act

  	
  47

  
	
  SECTION 9.06

  	
  Reference in Securities to Supplemental Indentures

  	
  47

  
	
   

  
	
  ARTICLE X

  
	
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  Payment of Principal, Premium and Interest

  	
  47

  
	
  SECTION 10.02

  	
  Maintenance of Office or Agency

  	
  48

  
	
  SECTION 10.03

  	
  Money for Securities Payments to be Held in Trust

  	
  48

  
	
  SECTION 10.04

  	
  Statement by Officers as to Default

  	
  50

  
	
  SECTION 10.05

  	
  Waiver of Certain Covenants

  	
  50

  
	
   

  
	
  ARTICLE XI

  
	
  Redemption of Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
  Applicability of Article

  	
  50

  
	
  SECTION 11.02

  	
  Election to Redeem; Notice to Trustee

  	
  51

  
	
  SECTION 11.03

  	
  Selection by Trustee of Securities to be Redeemed

  	
  51

  
	
  SECTION 11.04

  	
  Notice of Redemption

  	
  51

  
	
  SECTION 11.05

  	
  Deposit of Redemption Price

  	
  52

  
	
  SECTION 11.06

  	
  Securities Payable on Redemption Date

  	
  52

  
	
  SECTION 11.07

  	
  Securities Redeemed in Part

  	
  53

  



 


iii

















 


	
  ARTICLE XII

  
	
  Sinking Funds

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
  Applicability of Article

  	
  53

  
	
  SECTION 12.02

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  53

  
	
  SECTION 12.03

  	
  Redemption of Securities for Sinking Fund

  	
  54

  
	
   

  
	
  ARTICLE XIII

  
	
  Subordination of Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01

  	
  Securities Subordinate to Senior Indebtedness

  	
  54

  
	
  SECTION 13.02

  	
  Payment Over of Proceeds Upon Dissolution, Etc

  	
  54

  
	
  SECTION 13.03

  	
  Prior Payment to Senior Indebtedness Upon Acceleration of
  Securities

  	
  55

  
	
  SECTION 13.04

  	
  No Payment When Senior Indebtedness in Default

  	
  56

  
	
  SECTION 13.05

  	
  Payment Permitted if No Default

  	
  56

  
	
  SECTION 13.06

  	
  Subrogation to Rights of Holders of Senior Indebtedness

  	
  57

  
	
  SECTION 13.07

  	
  Provisions Solely to Define Relative Rights

  	
  57

  
	
  SECTION 13.08

  	
  Trustee to Effectuate Subordination

  	
  57

  
	
  SECTION 13.09

  	
  No Waiver of Subordination Provisions

  	
  58

  
	
  SECTION 13.10

  	
  Notice to Trustee

  	
  58

  
	
  SECTION 13.11

  	
  Reliance on Judicial Order or Certificate of Liquidating
  Agent

  	
  58

  
	
  SECTION 13.12

  	
  Trustee Not Fiduciary For Holders of Senior Indebtedness

  	
  59

  
	
  SECTION 13.13

  	
  Rights of Trustee as Holder of Senior Indebtedness;
  Preservation of Trustee’s Rights

  	
  59

  
	
  SECTION 13.14

  	
  Article Applicable to Paying Agents

  	
  59

  
	
  SECTION 13.15

  	
  Certain Conversions or Exchanges Deemed Payment

  	
  59

  
	
   

  
	
  ARTICLE XIV

  
	
  Defeasance and Covenant Defeasance

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01

  	
  Company’s Option to Effect Defeasance or Covenant
  Defeasance

  	
  59

  
	
  SECTION 14.02

  	
  Defeasance and Discharge

  	
  60

  
	
  SECTION 14.03

  	
  Covenant Defeasance

  	
  60

  
	
  SECTION 14.04

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  60

  
	
  SECTION 14.05

  	
  Deposited Money or U.S. Government Obligations to Be Held
  in Trust; Miscellaneous Provisions

  	
  62

  
	
  SECTION 14.06

  	
  Reinstatement

  	
  62

  



 


iv
















 


SUBORDINATED
INDENTURE, dated as of August 21, 2009, between Knoll, Inc., a Delaware corporation (the “Company”), and U.S.
Bank National Association, a national banking association, as trustee hereunder
(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
(the “Securities”), to be issued in one or more series as provided in this
Indenture.


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE I

Definitions and Other Provisions of General Application


 


SECTION 1.01                  Definitions.  For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


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


 


(b)           all
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;


 


(c)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, 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 as are generally accepted in the United States
of America at the date of such computation; and


 


(d)           the
words “herein”, “hereinafter”, “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. Certain terms, used principally
within an Article of this Indenture, may be defined in that Article.


 


“Act”, when used with respect to any
Holder, has the meaning specified in Section 1.04.


 

















 


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


 


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


 


“Board of Directors” means the board
of directors of the Company or any duly authorized committee of that board.


 


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


 


“Commission” means the Securities and
Exchange Commission, as 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.


 


“Company” means the Person 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 one of
its officers and delivered to the Trustee.


 


“Corporate Trust Office” means the
principal office of the Trustee at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is 425 Walnut Street, Cincinnati, Ohio 45202, except that with respect
to the presentation of Securities for payment or for registration of transfer
and exchange, such term shall mean the office or the agency of the Trustee designated
for such purpose.


 


“Corporation” includes corporations,
associations, companies (including limited liability companies) and business
trusts.


 


“Covenant Defeasance” has the meaning
specified in Section 14.03.


 


“Defaulted Interest” has the meaning specified
in Section 3.08(b).


 


“Defeasance” has the meaning specified
in Section 14.02.


 


2

















 


“Depository” means the clearing agency
registered under the Exchange Act that is designated by the Company to act as
depository for any series of Securities (or any successor to such clearing
agency).


 


“Dollar” means the currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.


 


“Event of Default” has the meaning
specified in Section 5.01.


 


“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 1.04.


 


“Global Security” means a Security
that evidences all or part of the Securities of any series and bears the legend
set forth in Section 2.02 (or such legend as may be specified as
contemplated by Section 3.02 for such Securities).


 


“Holder” or “holder” means a
Person in whose name at the time a particular Security is registered in the
Security Register.


 


“Indebtedness” of any Person means the
principal of (and premium, if any) and interest, if any, due on indebtedness of
such Person, whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, whether recourse is to all or a portion of the
assets of such Person and whether or not contingent, which is (a) indebtedness
for money borrowed, and (b) any amendments, renewals, extensions, modifications
and refundings of any such indebtedness. For the purposes of this definition, “indebtedness
for money borrowed” means (i) any obligation of, or any obligation
guaranteed by, such Person for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, (ii) any
obligation of, or any such obligation guaranteed by, such Person evidenced by
bonds, debentures, notes or similar written instruments, including obligations
assumed or incurred in connection with the acquisition of property, assets or
businesses (provided, however, that the deferred purchase price
of any property, assets or business shall not be considered Indebtedness if the
purchase price thereof is payable in full within 90 days from the date on which
such indebtedness was created), and (iii) any obligations of such Person
as lessee under leases required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles and leases of property or
assets made as part of any sale and lease-back transaction to which such Person
is a party. Indebtedness does not include trade accounts payable or accrued
liabilities arising in the ordinary course of business.


 


“Indenture” means 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, 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 3.02.


 


3

















 


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


 


“Interest Rate” means the rate of
interest specified or determined as specified in each Security as being the
rate of interest payable 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.


 


“Junior Subordinated Payment” has the
meaning specified in Section 13.02.


 


“Lien” means any mortgage, pledge,
security interest or lien or other encumbrance of any nature whatsoever.


 


“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, call for
redemption or otherwise.


 


“Notice of Default” means a written notice
of the kind specified in Section 5.01(iv).


 


“Officer’s Certificate” means a
certificate signed by an officer of the Company, and delivered to the Trustee.
Each such Officer’s Certificate shall contain the statements provided in Section 1.02
if and to the extent required by the provisions of such Section.


 


“Opinion of Counsel” means a written
opinion of counsel, who may be counsel for or an employee of the Company and
who shall be acceptable to the Trustee. 
Each Opinion of Counsel shall contain the statements provided in Section 1.02
if and to the extent required by the provisions of such Section.


 


“Original Issue Date” means the date
of issuance specified as such in each Security.


 


“Original Issue Discount Security”
means any Security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02.


 


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


 


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


 


(ii)           Securities
for whose payment or redemption money in the necessary amount and in the
required currency or currency unit 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 


 


4

















 


been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(iii)          Securities
as to which Defeasance has been effected pursuant to Section 14.02; and


 


(iv)          Securities
which have been paid pursuant to Section 3.07 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 5.02, (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 3.02,
(C) the principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall be
the Dollar equivalent, determined as of such date in the manner provided as
contemplated by Section 3.02, 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 the Trustee or
any other Person authorized by the Company to pay the principal of (and
premium, if any) or interest, if any, on any Securities on behalf of the
Company.


 


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


 


“Place of Payment”, when used with
respect to the Securities of any series, means the place or places where the
principal of (and premium, if any) and interest, if any, on the Securities of
that series are payable as specified in accordance with Section 3.02.


 


5

















 


“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 3.07
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.


 


“Proceeding” has the meaning specified
in Section 13.02.


 


“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 as calculated by the Company, 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 3.02, which
date shall be, unless otherwise specified pursuant to Section 3.02, the
fifteenth day preceding such Interest Payment Date, whether or not such day
shall be a Business Day.


 


“Responsible Trust Officer”, when used
with respect to the Trustee, means any of the following officers of the Trustee
who engage in corporate trust matters on behalf of the Trustee: any Vice
President, any assistant Vice President, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers who shall have direct responsibility for
the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of 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.


 


“Security Register” has the meaning
specified in Section 3.06(a).


 


“Security Registrar” means the Person
appointed as the initial Security Registrar in Section 3.06(a) or any
Person appointed by the Company as a successor or replacement Security
Registrar.


 


“Senior Indebtedness” means the
principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Indebtedness, whether
incurred on or prior to the date of this Indenture or thereafter incurred,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that 
such obligations are not superior in right of payment to the Securities
or to other Indebtedness which is pari passu with, or subordinated to, the
Securities; provided, however, that Senior Indebtedness shall not
be deemed to include (a) any Indebtedness of the Company which, when
incurred and without respect to any election under Section 1111(b) of
Title 11, United States Code, was without recourse to the Company, (b) any
Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness
to 


 


6

















 


any employee of the Company
or any employee of a Subsidiary of the Company, (d) any liability for
taxes, (e) Indebtedness or other monetary obligations to trade creditors
created or assumed by the Company or any of its Subsidiaries in the ordinary
course of business in connection with the obtaining of goods, materials or
services and (f) the Securities.


 


“Special Record Date” for the payment
of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.08(b).


 


“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
any entity of which at the time of determination the Company and/or one or more
other Subsidiaries owns or controls directly or indirectly more than 50% of the
shares of Voting Stock.


 


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


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939 and any statute successor thereto, in each case as
amended from time to time.


 


“United States” means the United
States of America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.


 


“U.S. Government Obligation” means,
with respect to the Securities of any series, securities which are (i) direct
obligations of the United States or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States the payment of which is unconditionally guaranteed by the United
States and which, in either case, are full faith and credit obligations of the
United States and are not callable or redeemable at the option of the issuer
thereof and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.


 


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


 


7

















 


“Voting Stock” means stock of a
Corporation of the class or classes having general voting power under ordinary
circumstances in the election of directors, managers or trustees of such
Corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).


 


SECTION 1.02                  Compliance
Certificates and Opinions.  (a)  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 and opinion shall be given in the form of an
Officer’s Certificate, if to be given by an officer of the Company, and 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.  In the case of an
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.


 


(b)           Unless
expressly otherwise specified with respect to any certificate or opinion
provided for in this Indenture, every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than annual certificates provided pursuant to Section 10.04) shall
include:


 


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


 


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


 


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


 


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


 


SECTION 1.03                  Form of Documents
Delivered to Trustee.  (a)  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.


 


(b)           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 certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it 


 


8

















 


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.


 


(c)           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 1.04                  Acts of Holders; Record
Dates.  (a)  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of any series may be embodied in
and evidenced by (i) one or more instruments of substantially similar
tenor signed by such Holders in person or by proxies duly appointed in writing,
(ii) the record of such Holders voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called, or (iii) a combination of any such record
and one or more instruments of substantially similar tenor signed by such
Holders in person or by proxies duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
record and/or instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such record or 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 or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such proxy shall be sufficient for
any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


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


 


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


 


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


 


(e)           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, 


 


9

















 


demand, authorization, direction, 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 cancelled 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 1.06.


 


(f)            The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration, or any rescission
or annulment of any such declaration, referred to in Section 5.02, (iii) any
request to institute proceedings referred to in Section 5.07(ii) or (iv) any
direction referred to in Section 5.12. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities 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 on such record date.
Nothing in this paragraph shall be 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 cancelled 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
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 1.06.


 


(g)           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 1.06, 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 


 


10

















 


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.


 


(h)           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 1.05                  Notices, Etc., to Trustee
and Company.  Any request, demand, authorization,
direction, notice, consent, waiver or other Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with:


 


(a)           the
Trustee by any Holder or by the Company shall be made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office and
unless otherwise herein expressly provided, any such document shall be deemed
to be sufficiently made, given, furnished or filed upon its receipt by a
Responsible Trust Officer of the Trustee, or


 


(b)           the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
delivered in person, mailed, first-class postage prepaid, or sent by overnight
mail to the Company addressed to it at 1235 Water Street, East Greenville,
Pennsylvania 18041 or at any other address previously furnished in writing to
the Trustee by the Company, Attention: Legal Department.


 


(c)           Neither
the Company nor the Trustee shall be deemed to have received any such request,
demand, authorization, direction, notice, consent, waiver or other Act of
Holders unless given, furnished or filed as provided in this Section 1.05.


 


SECTION 1.06                  Notice to Holders; Waiver.  (a)  Where this Indenture
provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided or
unless otherwise specified in such Securities) if in writing and delivered in
person, mailed, first-class postage prepaid or sent by overnight mail, to each
Holder affected by such event, at his address as it appears in the Security
Register, within the time prescribed for the giving of such notice, and


 


(b)           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 to Holders in the
manner specified above, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.


 


(c)           In
any case where notice to a Holder is given in any manner specified in paragraph
(a) above, such notice shall be conclusively presumed to have been duly
given, whether or not such Holder receives such notice. In any case where
notice to Holders is given in any manner specified in paragraph (a) above,
neither the failure to deliver, mail or send such notice, nor any defect in any
notice so mailed or sent, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders.


 


11
















 


(d)                                 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.


 


SECTION 1.07                                                     Conflict with
Trust Indenture Act.  If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act which is required under
such 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.


 


SECTION 1.08                                                     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 1.09                                                     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 and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 


SECTION 1.12                                                     Governing Law
and Waiver of Jury Trial.  This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of
New York, without giving effect to applicable principles of conflicts of
laws to the extent the laws of another jurisdiction would be required
thereby.  EACH OF THE COMPANY AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THE TRANSACTION
CONTEMPLATED HEREBY.


 


SECTION 1.13                                                     Legal Holidays.  In any case where any Interest
Payment Date, Redemption Date, Maturity, or Stated Maturity of any Security
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) 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, or at the Maturity
or Stated Maturity, as the case may be, provided that no interest shall
accrue for the period from and after such Interest Payment Date, 


 


12

















 


Redemption
Date, Maturity or Stated Maturity, as the case may be, to the next succeeding
Business Day at such Place of Payment.


 


SECTION 1.14                                                     Computations.  Unless otherwise specifically provided, the
certificate or opinion of any independent firm of public accountants of
recognized standing selected by the Chief Financial Officer or Chief Accounting
Officer of the Company shall be conclusive evidence of the correctness of any
computation made under the provisions of this Indenture.  The Company shall furnish to the Trustee upon
its request a copy of any such certificate or opinion.


 


SECTION 1.15                                                     Counterparts;
Facsimile.  This Indenture may be executed in any number
of counterparts and by the parties hereto in separate counterparts, and
signature pages may be delivered by facsimile, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.


 


ARTICLE II

Security Forms


 


SECTION 2.01                                                     Forms Generally.  The Securities of each series shall be in the
form or forms established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
provisions 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 applicable tax
laws or the rules of any securities exchange or Depository therefor or as
may, consistently herewith, be determined by the officer executing such
Securities, as evidenced by the officer’s 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 3.04
with respect to the authentication and delivery of such Securities.


 


The Trustee’s certificate of
authentication shall be substantially in the form set forth in this Article.


 


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 officer executing such
Securities, as evidenced by the officer’s execution of such Securities.


 


The Securities of each
series will initially be issued in the form of one or more Global Securities.
Each such Global Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and each shall provide that it shall
represent the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amounts of Outstanding
Securities of such series represented thereby may from time to time be reduced
or increased, as appropriate. The Global Security or Securities evidencing the
Securities of a series (and all Securities issued in exchange therefore) shall
bear the legend indicated in Section 2.02.


 


13

















 


SECTION 2.02                                                     Form of
Legend for Global Securities.


 


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


 


UNLESS THIS SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.


 


THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF DTC 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 DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


SECTION 2.03                                                     Form of
Trustee’s Certificate of Authentication.


 


The Trustee’s certificates
of authentication shall be in substantially the following form:


 


Certificate of Authentication


 


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


 


Dated:


 


	
   

  	
  U.S.
  Bank National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  



 


ARTICLE III

The Securities


 


SECTION 3.01                                                     Creation of
Securities in Amount Unlimited.  An unlimited aggregate principal amount of Securities
may be issued pursuant to this Article III. The Securities may be
authenticated and delivered, as authorized by the Board of Directors, in an
unlimited number of series.


 


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SECTION 3.02                                                     Documents Required
for Issuance of Each Series of Securities.  At any time and from time to
time, Securities of each series created pursuant to the provisions of this Article III
may be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee as contemplated by Section 3.04 upon receipt
by the Trustee of the following:


 


(a)                                  A Board Resolution or Board
Resolutions authorizing the execution, authentication and delivery of the
Securities of the series, or one or more indentures supplemental hereto,
specifying:


 


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


 


(ii)                                  any limit upon
the aggregate principal amount of the Securities of the series which may be authenticated
and delivered under this Article III (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the same series pursuant to Section 3.05, 3.06,
3.07, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.04,
are deemed never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series
may be increased above such amount by a Board Resolution to such effect;


 


(iii)                               the date or
dates on which the principal (and premium, if any) of any of the Securities of
the series are payable or the method of determination thereof;


 


(iv)                              the rate or
rates, or the method of determination thereof, at which any of the Securities
of the series shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date (if other than as defined in this
Indenture) for the interest payable on any Securities on any Interest Payment
Date;


 


(v)                                 the place or
places where the principal of (and premium, if any) and interest, if any, on
any of the Securities of the series shall be payable and the office or agency
for the Securities of the series maintained by the Company pursuant to Section 10.02;


 


(vi)                              the period or
periods within which, the price or prices at which and the terms and conditions
upon which any of the Securities of the series may be redeemed or prepaid, in
whole or in part, at the option of the Company;


 


(vii)                           the terms of
any sinking fund and the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which and the
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;


 


(viii)                        the terms, if
any, for the attachment to Securities of the series of warrants, options or
other rights to purchase or sell stock or other securities of the Company;


 


15

















 


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


 


(x)                                   if other than
the principal amount thereof, the portion of the principal amount of any of the
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.02;


 


(xi)                                any deletions
or modifications of or additions to the Events of Default set forth in Section 5.01
or covenants of the Company set forth in Article VIII or X pertaining to
the Securities of the series;


 


(xii)                             the form or
forms of the Securities of the series;


 


(xiii)                          if other than
Dollars, the currency or currencies, or currency unit or units, in which the
Securities of such series will be denominated and/or in which payment of the
principal of (and premium, if any) and interest, if any, on any of the
Securities of the series shall be payable;


 


(xiv)                         if the
principal of (and premium, if any) or interest, if any, on any of the
Securities of the series are to be payable at the election of the Company or a
Holder thereof, or under some or all other circumstances, in a currency or
currencies, or currency unit or units, other than that in which the Securities
are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made, or the other circumstances
under which any of the Securities are to be so payable, including, without
limitation, any provision requiring the Holder to bear currency exchange costs
by deduction from such payments;


 


(xv)                            if the amount
of payments of principal of (and premium, if any) or interest, if any, on any
of the Securities of the series may be determined with reference to an index or
indices based on (A) a currency or currencies or currency unit or units
other than that in which such Securities are stated to be payable or (B) any
method, not inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (A) and (B) the
manner in which such amounts shall be determined;


 


(xvi)                         the additions
or changes, if any, to this Indenture with respect to the Securities of such
series as shall be necessary to permit or facilitate the issuance of the
Securities of such series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;


 


(xvii)                      whether any
Securities of the series are to be issuable initially in temporary global form
and whether any Securities of the series are to be issuable in definitive
global form and, if so, whether beneficial owners of interests in any such
definitive global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and the
circumstances under which and the place or places where any such exchanges may
occur, if other than in the manner provided in Section 3.06;


 


16

















 


(xviii)                   if the Securities of the
series are to be issued upon the exercise of warrants or subscription rights,
the time, manner and place for such Securities to be authenticated and
delivered;


 


(xix)                           whether and
under what circumstances and with what procedures and documentation the Company
will pay additional amounts on any of the Securities of the series to any
Holder who is not a U.S. Person (including a definition of such term), in
respect of any tax assessment or governmental charge withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities
rather than pay additional amounts (and the terms of any such option);


 


(xx)                              the Person to
whom any interest on any 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, and the extent to which, or the manner in which, any interest payable
on a temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 3.05;


 


(xxi)                           the terms and
conditions of any right or obligation on the part of the Company, or any option
on the part of the Holders, to convert or exchange the Securities of such
series into cash or any other securities or property of the Company or any
other Person, and the additions or changes, if any, to this Indenture with
respect to the Securities of such series to permit or facilitate such conversion
or exchange;


 


(xxii)                        whether and
under what circumstances any or all of the provisions of this Indenture
relating to the subordination of the Securities (including the provisions of Article XIII),
or different subordination provisions, including a different definition of “Senior
Indebtedness” will apply or cease to apply to the Securities of the series; and


 


(xxiii)                     any other terms of any of
the Securities of the series (which terms shall not be inconsistent with the
provisions of this Indenture).


 


If any of the terms of the
series are established by action taken pursuant to a Board Resolution or Board
Resolutions, 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.


 


(b)                                 In case the Securities of
the series to be authenticated and delivered are to be created pursuant to one
or more supplemental indentures, such supplemental indenture or indentures,
accompanied by a Board Resolution or Board Resolutions authorizing such
supplemental indenture or indentures and designating the new series to be
created and prescribing, pursuant to paragraph (a) above, consistent with
the applicable provisions of this Indenture, the terms and provisions relating
to the Securities of the series.


 


SECTION 3.03                                                     Denominations.  The Securities of each series issued in
registered form shall be issuable in such denominations as shall be specified
as contemplated by Section 3.02. In the absence of any such provisions
with respect to the Securities of any series, the Securities of such series
denominated in Dollars shall be issuable in denominations of $l,000 and in any
integral multiple thereof. Each Security shall bear the appropriate legends, if
any, as required by U.S. Federal tax law and regulations.


 


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SECTION 3.04                                                     Execution,
Delivery, Dating and Authentication.  (a)  The Securities shall be executed on
behalf of the Company by a manual or facsimile signature of one of its officers
or, if required by any securities exchange on which the Securities may be
listed, by a manual or facsimile signature of two of its officers. In case an
officer of the Company who shall have signed any of the Securities shall cease
to be such officer before the Securities so signed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Securities nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Securities had not ceased to be such officer;
and any Securities may be signed on behalf of the Company by such person as, at
the actual date of the execution of such Security, shall be such officer of the
Company, although at the date of the execution of this Indenture any such
person was not such officer.


 


(b)                                 At any time and from time to
time, 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 2.01 and
3.02, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be provided with, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:


 


(i)                                     if the form of
such Securities has been established by or pursuant to Board Resolution as
permitted by Sections 2.01 and 3.02, that such form has been established in
conformity with the provisions of this Indenture;


 


(ii)                                  if the terms of
such Securities have been established by or pursuant to Board Resolution as
permitted by Section 3.02, that such terms have been established in
conformity with the provisions of this Indenture; and


 


(iii)                               that such
Securities have been duly executed and, 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.


 


(c)                                  The Trustee shall not be
required to authenticate Securities of any series 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.


 


(d)                                 Notwithstanding the
provisions of Section 3.02, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Officer’s
Certificate otherwise required pursuant to Section 3.02 or the Company
Order and Opinion of Counsel otherwise required pursuant to Section 3.04(b) at
or prior to the authentication of each Security 


 


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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.


 


(e)                                  Each Security shall be dated
the date of its authentication.


 


(f)                                    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 duly 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 3.10 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.


 


(g)                                 Minor typographical and
other minor errors in the text of any Security shall not affect the validity
and enforceability of such Security if it has been duly authenticated and
delivered by the Trustee.


 


(h)                                 The Company shall execute
and the Trustee shall authenticate and deliver one or more Global Securities
with respect to each series of Securities that (i) shall represent an
aggregate amount equal to the aggregate principal amount of the initially
issued Securities of such series, (ii) shall be registered in the name of
the Depository or the nominee of the Depository, (iii) shall be delivered
by the Trustee to the Depository or pursuant to the Depository’s instruction
and (iv) shall bear a legend substantially in the form required in Section 2.02.


 


The Depository must, at all
times while it serves as such Depository, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.


 


SECTION 3.05                                                     Temporary
Securities.  (a)  Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Securities may determine (but which do not affect the rights,
duties or immunities of the Trustee), as evidenced conclusively by his or her
execution of such Securities. Such temporary Securities may be in global form.


 


(b)                                 If temporary Securities of
any series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company in a Place of Payment without charge to the Holder.
Upon surrender for cancellation of any one or more 


 


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temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and having
the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities.  Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.


 


SECTION 3.06                                                     Registration,
Registration of Transfer and Exchange.  (a)  The Company shall
cause to be kept at an office or agency to be maintained by the Company in
accordance with Section 10.02 a register (being the combined register of
the Security Registrar and all additional transfer agents designated pursuant
to Section 10.02 for the purpose of registration of transfer of Securities
and 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 the registration of transfers of
Securities. U.S. Bank National Association is hereby appointed the initial Security Registrar, with the Security
Register initially to be kept at 425 Walnut Street,
Cincinnati, Ohio 45202. At all reasonable times
each register maintained by the Security Registrar and any additional transfer
agents shall be open for inspection by the Trustee.


 


(b)                                 Upon surrender for
registration of transfer of any Security of any series at the office or agency
of the Company maintained pursuant to Section 10.02 for such purpose in a
Place of Payment for such 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 a like aggregate principal amount and tenor, of the same
Original Issue Date and Stated Maturity and having the same terms.


 


(c)                                  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 a like aggregate principal amount
and tenor, of the same Original Issue Date and Stated Maturity and having the
same terms, upon surrender of the Securities to be exchanged at any 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
which the Holder making the exchange is entitled to receive.


 


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


 


(e)                                  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.


 


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


 


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(g)                                 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 3.05,
9.06 or 11.07 not involving any transfer.


 


(h)                                 The Company shall not be
required (i) to issue, register the transfer of or exchange Securities of
any series during a period beginning at the opening of business 15 Business
Days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 11.03 and ending at the
close of business on the day of the mailing of the relevant notice of
redemption, or (ii) 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.


 


(i)                                    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 Depository designated for such Global Security or a nominee thereof and
delivered to such Depository 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 Depository for such Global Security or a nominee thereof unless (A) such
Depository (i) has notified the Company that it is unwilling or unable to
continue as Depository 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 3.02.


 


(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
Depository 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 3.05, 3.07, 9.06 or 11.07 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
Depository for such Global Security or a nominee thereof.


 


SECTION 3.07                                                     Mutilated,
Destroyed, Lost and Stolen Securities.  (a)  If any mutilated
Security is surrendered to the Trustee together with such security or indemnity
as may be required by the Company or the Trustee to save each of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount, having the same Original Issue Date and 


 


21

















 


Stated
Maturity and bearing the same Interest Rate as such mutilated Security, and
bearing a number not contemporaneously outstanding.


 


(b)                                 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, having the same Original Issue
Date and Stated Maturity and bearing the same Interest Rate as such destroyed,
lost or stolen Security, and bearing a number not contemporaneously
outstanding.


 


(c)                                  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.


 


(d)                                 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.


 


(e)                                  Every new Security of any
series issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, 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.


 


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


 


SECTION 3.08                                                     Payment of
Interest; Interest Rights Preserved.  (a)  Unless otherwise provided as
contemplated by Section 3.02, 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.  The initial payment of interest on any
Security of any series which is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.02 with respect to the
related series of Securities.


 


(b)                                 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 (“Defaulted Interest”) shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:


 


22

















 


(i)                                     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 shall be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in the
Security Register, 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 mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or the
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii).


 


(ii)                                  The Company may
make payment of any Defaulted Interest on 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 and Section 3.06, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.


 


SECTION 3.09                                                     Persons Deemed
Owners.  (a)  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 premium, if any) and (subject to Sections 3.06 and 3.08
and unless otherwise specified as contemplated by Section 3.02) interest
on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.


 


(b)                                 None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments 


 


23

















 


made on account of beneficial ownership interests of a Global Security
or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.


 


SECTION 3.10                                                     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. All Securities so delivered shall be
promptly cancelled by the Trustee. 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 to the Trustee
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of in accordance
with the Trustee’s customary procedure unless otherwise directed by a Company
Order; provided, however, that the Trustee may, but shall not be
required to, destroy such cancelled Securities.


 


SECTION 3.11                                                     Computation of
Interest.  Except as otherwise specified as contemplated
by Section 3.02, for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve
30-day months.


 


SECTION 3.12                                                     Depository.


 


(a)                                  If at any time the Depository
notifies the Company that it is unwilling or unable to continue as Depository
or if at any time the Depository shall cease to be a clearing agency registered
under the Exchange Act, the Company shall appoint a successor Depository. If a
successor Depository is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities, will authenticate and
make available for delivery, individual Securities in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing the Outstanding Securities in exchange for such Global Security or
Securities.


 


(b)                                 The Company may at any time
and in its sole discretion (subject to the procedures of the Depository)
determine that Securities issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Securities, will
authenticate and make available for delivery, individual Securities in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing the Outstanding Securities in exchange for such Global
Security or Securities.


 


(c)                                  The Depository may surrender
a Global Security in exchange in whole or in part for individual Securities on
such terms as are acceptable to the Company, the Trustee and such Depository.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, without service charge:


 


24

















 


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


 


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


 


(d)                                 Upon the exchange of a
Global Security for individual Securities in an aggregate principal amount
equal to the principal amount of such Global Security, such Global Security
shall be canceled by the Trustee. Individual Securities issued in exchange for
a Global Security pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall make available for
delivery such individual Securities to the Persons in whose names such
Securities are so registered.


 


SECTION 3.13                                                     CUSIP Numbers.  The Company in issuing the Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


ARTICLE IV

Satisfaction and Discharge


 


SECTION 4.01                                                     Satisfaction
and Discharge of Indenture in Respect of any Series of Securities.  This Indenture shall upon
Company Request cease to be of further effect with respect to a series of
Securities (except as to any surviving rights of (as applicable) registration
of transfer or exchange of Securities of such series herein expressly provided
for), and the Trustee, at the request and expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such series, when:


 


(a)                                  Either


 


(i)                                     all Securities
of such series theretofore authenticated and delivered (other than (A) Securities
of such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.07 and (B) Securities of
such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or


 


(ii)                                  all such
Securities of such series not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, or (B) will become due
and payable at their Stated Maturity within one year, or (C) 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 


 


25

















 


the name, and at the expense, of the Company, and the Company, in the
case of (ii)(A), (B) or (C) above, has deposited or caused to be
deposited with the Trustee as trust funds: 
(i) money, (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, money, or (iii) a
combination thereof, in each case in an amount, and in the currency or currency
unit in which such Securities of such series are payable, sufficient to pay and
discharge, and which shall be applied by the Trustee to pay and discharge, the
entire Indebtedness on such Securities of such series not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of Securities of
such series which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;


 


(b)                                 the Company has paid or
caused to be paid all other sums payable hereunder by the Company with respect
to such series of Securities; and


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture with respect to a series, the
obligations of the Company to the Trustee under Section 6.07, the
obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money and/or U.S. Government Obligations shall have been deposited
with the Trustee pursuant to subclause (ii) of clause (a) of this
Section, the obligations of the Trustee under Section 4.02 and Section 10.03(e) shall
survive such satisfaction and discharge.


 


SECTION 4.02                                                     Application of
Trust Money.  Subject to the provisions of  Section 10.03(e), all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 4.01
(and all proceeds of such U.S. Government Obligations deposited pursuant to Section 4.01
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
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee.


 


ARTICLE V

Remedies


 


SECTION 5.01                                                     Events of Default.  “Event of Default” with
respect to any series of Securities means each one of the events specified
below in this Section 5.01, unless it is either inapplicable to a
particular series, or is specifically deleted or modified in or pursuant to the
supplemental indenture or Board Resolution establishing such series of
Securities:


 


(i)                                     default in the
payment of any installment of interest upon any of the Securities of such
series, as and when the same shall become due and payable, and continuance of
such default for a period of 30 days; or


 


26

















 


(ii)                                  default in the
payment of the principal of or premium, if any, on any of the Securities of
such series, as and when the same shall become due and payable (subject to
clause (iii) below) either at Maturity, upon redemption, by declaration or
otherwise (except the failure to make payment when due and payable if such
failure results solely from nonpayment by reason of mistake, oversight or
transfer difficulties and does not continue beyond three Business Days); or


 


(iii)                               default in the
making of any payment for a sinking, purchase or analogous fund provided for in
respect of such series of Securities, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or


 


(iv)                              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) in respect of the Securities of such
series, or contained in this Indenture with respect to such series, for a
period of 60 days after the date on which written notice of such failure
requiring the Company to remedy the same and stating that such notice is a ‘Notice
of Default’ hereunder, shall have 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 aggregate principal amount of the Securities of such series
at the time Outstanding; or


 


(v)                                 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 (B) a decree or order adjudging the Company 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 receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days; or


 


(vi)                              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 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 or 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 receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Company or for any substantial part of its property, or any
general assignment by the Company for the benefit of creditors, or the
admission by it in writing of its inability generally to pay its debts as they
become due, or the taking by the Company of any corporate action in furtherance
of any of the foregoing; or


 


27

















 


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


 


SECTION 5.02                                                     Acceleration of
Maturity; Rescission and Annulment. (a)  If
an Event of Default (other than an Event of Default specified in Section 5.01(v) or
5.01(vi)) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in each and every such case, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series, together with accrued interest
thereon, if any, to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount), together with accrued
interest thereon, if any, shall become immediately due and payable, provided
that the payment of principal and interest on such Securities shall remain
subordinated to the extent provided in Article XIII.  If an Event of Default specified in Section 5.01(v) or
5.01(vi) 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)
shall automatically, and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.


 


(b)                                 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 not less than a majority in aggregate 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:


 


(i)                                     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 interest thereon at
the rate or rates prescribed therefor in such Securities,


 


(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


 


28

















 


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


 


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


 


SECTION 5.03                                                     Collection of
Indebtedness and Suits for Enforcement by Trustee.  (a)  The Company
covenants that if:


 


(i)                                     default shall
be made in the payment of any installment of interest on any Security when the
same shall become due and payable, and such default shall have continued for
the period of 30 days,


 


(ii)                                  default shall
be made in the payment of the principal of or premium, if any, on any Security
as and when the same shall have become due and payable (subject to clause (iii) below),
whether at Maturity of the Security or upon redemption or by declaration or
otherwise, and such default shall have continued for any period of grace
provided for with respect to such Security, or


 


(iii)                               default shall
be made in the payment for any sinking, purchase or analogous fund provided for
in respect of any Security as and when the same shall become due and payable,
and such default shall have continued for any period of grace provided for with
respect to such Security,


 


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 premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue installments of interest, if
any, 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.


 


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


 


(c)                                  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.


 


29
















 


SECTION 5.04       Trustee May File Proofs
of Claim.  (a)  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 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 in accordance with Section 5.06, 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 6.07.


 


(b)           Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting 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 5.05       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, before the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.


 


SECTION 5.06       Application of Money
Collected.  Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) 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 6.07;


 


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


 


THIRD:  to the payment of the remainder, if any, to
the Company, its successors or assigns or as a court of competent jurisdiction
may direct.


 


30

















 


SECTION 5.07       Limitation on Suits. No Holder 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:


 


(i)            an Event of Default with respect to Securities of
such series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing Event of
Default with respect to the Securities of that series;


 


(ii)           the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series or, in the case
of an Event of Default specified in clause (v) or (vi) of Section 5.01,
of all series (voting as a class) with respect to which such Event of Default
has occurred and is continuing, 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;


 


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


 


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


 


(v)           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 aggregate principal amount of the
Outstanding Securities of that series or, in the case of an Event of Default
specified in clause (v) or (vi) of Section 5.01, of all series
(voting as a class) with respect to which such Event of Default has occurred
and is continuing;


 


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 (including without
limitation the provisions of Section 5.12) to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.


 


SECTION 5.08       Unconditional Right of
Holders to Receive Principal, Premium and Interest.  Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 3.08) interest, if any, on
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.


 


SECTION 5.09       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 and 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 


 


31

















 


remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.


 


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 Section 3.07(f), 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. Subject to the provisions of Section 5.07, every
right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.


 


SECTION 5.12       Control by Holders.  The Holders of not less than a
majority in aggregate 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:


 


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


 


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


 


(iii)          subject to the provisions of Section 6.01, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Trust Officer or Officers of the
Trustee, determine that the action so directed would involve the Trustee in
personal liability or be unduly prejudicial to Holders not joining therein.


 


SECTION 5.13       Waiver of Past Defaults.  The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default:


 


(i)            in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or


 


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


 


32

















 


Upon any such waiver, such
default shall cease to exist with respect to such series, and any Event of
Default with respect to such series 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.  All parties to this Indenture
agree, and each Holder of a Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant 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 by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on the Redemption Date).


 


SECTION 5.15       Waiver of 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 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 VI

The Trustee


 


SECTION 6.01       Certain Duties and Responsibilities.  The duties, responsibilities,
protections, privileges, and immunities of the Trustee shall be as provided by
the Trust Indenture Act, unless expressly excluded as provided in this Article VI.  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.


 


SECTION 6.02       Notice of Defaults.  Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit to the


 


33

















 


Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any, on) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Trust Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of Securities of such series; provided, further, that
in the case of any default of the character specified in Section 5.01(iv) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence of such default. For the purpose of
this Section, the term “default” means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.


 


SECTION 6.03       Certain Rights of Trustee.   Subject to the provisions of Section 6.01:


 


(a)           the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, 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;


 


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


 


(c)           whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer’s Certificate;


 


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


 


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


 


(f)            the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of Indebtedness or other
paper or document;


 


34

















 


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


 


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


 


(i)            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;


 


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


 


(k)           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 this Indenture.


 


SECTION 6.04       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 the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. 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 6.05       May Hold Securities.  The Trustee, 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 or warrants
or subscription rights to purchase Securities and, subject to Section 6.08
and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.


 


SECTION 6.06       Money Held in Trust.  Money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee or any Paying Agent shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.


 


SECTION 6.07       Compensation and
Reimbursement.  (a)  The Company agrees:


 


35

















 


(i)            to pay to the Trustee from time to time in Dollars
such reasonable compensation as shall be agreed to in writing between the
Company and the Trustee 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);


 


(ii)           except as otherwise expressly provided herein, to
reimburse the Trustee in Dollars 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
reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to the negligence
or willful misconduct of the Trustee or of its agents or counsel; and


 


(iii)          to indemnify the Trustee for, and to hold it
harmless against, any and all loss, liability, damage, claim or expense,
including taxes, other than taxes based upon, or measured or determined by, the
income of the Trustee, (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel) incurred without
negligence or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the reasonable 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.


 


(b)           As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a Lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on particular Securities.


 


(c)           When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 5.01(v) and
Section 5.01(vi), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law. The provisions of this Section shall
survive the termination of this Indenture and the resignation or removal of the
Trustee.


 


SECTION 6.08       Disqualification;
Conflicting Interests.  (a)  If the Trustee has or shall acquire
any conflicting interest, as defined in Section 310(b) of the Trust
Indenture Act, with respect to the Securities of any series, it shall, within
90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series in the manner and with the effect provided by, and subject to the
provisions of, Section 310(b) 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.


 


(b)           In the event that the Trustee shall fail to comply
with the provisions of the preceding sentence with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit, in the manner and to the extent provided in Section 1.06,
to all Holders of Securities of that series notice of such failure.


 


36

















 


(c)           Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act.


 


SECTION 6.09       Corporate Trustee Required;
Eligibility.  There shall at all times be a Trustee for
each series of Securities hereunder which shall be either (1) a corporation
organized and doing business under the laws of the United States, which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal or State authority or (2) a
corporation or other Person organized and doing business under the laws of a
foreign government that is permitted to act as Trustee pursuant to a rule,
regulation or order of the Commission, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
authority of such foreign government or apolitical subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees; in either case having a combined capital and
surplus of at least $50,000,000. If such corporation or Person 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 and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation or Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall
serve as trustee for the Securities of any series issued hereunder. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


SECTION 6.10       Resignation and Removal;
Appointment of Successor.  (a)  No resignation or removal of the
Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 6.11.


 


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


 


(c)           The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. 
If the instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the removed Trustee within 30 days after the
delivery of the evidence of the Act of the Holders, the removed Trustee may, at
the expense of the Company, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.


 


(d)           If at any time:


 


37

















 


(i)            the Trustee shall fail to comply with Section 6.08
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security of a series as to which the Trustee has a
conflicting interest for at least six months, or


 


(ii)           the Trustee for a series shall cease to be eligible
under Section 6.09 and shall fail to resign after written request therefor
by the Company or by any Holder, or


 


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


 


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


 


(e)           If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the 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 of or all such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and such successor Trustee or Trustees 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 aggregate 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 Section 6.11, any Holder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.


 


(f)            The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities of
any series by giving notice of such event to all Holders of Securities of such
series as provided by Section 1.06. 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.


 


38

















 


SECTION 6.11       Acceptance of Appointment by
Successor.  (a)  In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on 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.


 


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


 


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


 


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


 


39
















 


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 of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided that 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.


 


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.  (a)  The Company 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 or upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.07, 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 Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Trustee and shall at all
times be a corporation having a combined capital and surplus of not less than
the equivalent of $50,000,000 and subject to supervision or examination by
Federal, state or District of Columbia authority or the equivalent foreign
authority, in the case of an Authenticating Agent who is not organized and
doing business under the laws of the United States. 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.


 


(b)           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 such 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 such
Authenticating Agent.


 


40

















 


(c)           An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Company
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Trustee. 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 Company may appoint a successor
Authenticating Agent which shall be acceptable to the Trustee and shall mail,
or cause to be mailed, written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities, if any, of the series with
respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. 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.


 


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


 


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


 


This is one of the Securities of the series
designated herein issued under the within-mentioned Indenture.


 


	
  U.S.
  Bank National Association, as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  [                        ]

  	
   

  
	
   

  	
  As
  Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  



 


(f)            If all the Securities of a series may not be
originally issued at one time, and if the Trustee does not have an office
capable of authenticating Securities upon original issuance located in a Place
of Payment or other place where the Company wishes to have Securities of such
series authenticated upon original issuance, the Company shall appoint in
accordance with this Section an Authenticating Agent (which may be an Affiliate
of the Company if eligible to be appointed as an Authenticating Agent hereunder)
having an office in such Place of Payment or other place designated by the
Company with respect to such series of Securities.


 


41

















 


ARTICLE VII

Holders’ Lists and Reports by Trustee and Company


 


SECTION 7.01                  Company to Furnish Trustee
Names and Addresses of Holders.  The Company will furnish or cause to be
furnished to the Trustee:


 


(a)           semiannually, not later than January 15 and July 15
in each year, a list in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of each series of Securities as of the
preceding January 1 or July 1, as the case may be; and


 


(b)           at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date not more
than 15 days prior to the time such list is furnished, provided, however,
that, in the case of both Sections 7.01(a) and (b), at such times as the
Trustee is the Security Registrar and Paying Agent with respect to a particular
series of Securities, no such list shall be required to be furnished in respect
of such series.


 


SECTION
7.02                  Preservation of Information;
Communications to Holders.  (a)  The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.01 and the names and addresses of Holders of each series received
by the Trustee in any capacity as Security Registrar or Paying Agent. The
Trustee may destroy any list furnished to it as provided in Section 7.01 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.


 


(b)           Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
Holders made pursuant to the Trust Indenture Act.


 


SECTION 7.03                  Reports by Trustee.  (a)  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.  If required
by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days
after each May 15 commencing with the May 15 occurring after the initial
issuance of Securities hereunder, deliver to Holders a brief report, dated as
of such May 15, which complies with the provisions of Section 313(a) of the
Trust Indenture Act.


 


(b)           A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each United States
stock exchange upon which any Securities are listed, with the Commission and
with the Company.


 


(c)           Reports pursuant to Section 7.03(a) shall be
transmitted by mail (i) to all Holders, as their names and addresses appear in
the Security Register, (ii) to all Holders as have, within two years preceding
such transmission, filed their names and addresses with the Trustee for such 


 


42

















 


purpose, and (iii) to all Holders whose names and addresses have been
furnished or received by the Trustee pursuant to Sections 7.01 and 7.02.


 


SECTION 7.04                  Reports by Company.  (a)  The Company shall:


 


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


 


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


 


(iii)          transmit by mail to all Holders of Securities, in
the manner and to the extent provided in Section 7.03(c) with respect to
reports to be transmitted pursuant to Section 7.03(a), within 30 days after the
filing thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraph (i) of (ii)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.


 


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


 


ARTICLE VIII

Consolidation, Merger, Conveyance or Transfer


 


SECTION 8.01                  Company May Consolidate,
Etc., Only on Certain Terms. (a) Subject
to Section 8.01(b), the Company shall not consolidate with or merge into any
other Person or convey or transfer its assets substantially as an entirety to
any Person, unless:


 


(i)            the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or transfer
the assets of the Company substantially as an entirety shall be a corporation,
partnership, trust or limited liability company organized and existing under
the laws of the United States and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the 


 


43

















 


Trustee, the due and punctual payment of the principal of, and premium,
if any, and interest, if any, 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;


 


(ii)           immediately after giving effect to 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


 


(iii)          the Company has delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer 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.


 


(b)           The provisions of Section 8.01(a)(i), (ii) and (iii)
shall not be applicable to the direct or indirect conveyance or transfer of all
or any portion of the stock, assets or liabilities of any of the Company’s
wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries
of the Company.


 


SECTION 8.02                  Successor Corporation
Substituted.  Upon any consolidation of the Company with,
or merger of the Company into, any other Person, or any conveyance or transfer
of the assets of the Company substantially as an entirety in accordance with Section
8.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer 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 in the event of any such conveyance
or transfer, the Company (which term shall for this purpose mean the Person
named as the “Company” in the first paragraph of this instrument or any
successor corporation which shall have theretofore become such in the manner
prescribed in Section 8.01) shall be discharged from all liability under this
Indenture and in respect of the Securities and may be dissolved and liquidated.


 


ARTICLE IX

Supplemental Indentures


 


SECTION 9.01                  Supplemental Indentures
Without Consent of Holders.  Without the consent of any Holders, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:


 


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


 


(ii)           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;


 


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(iii)          to add any additional Events of Default with respect
to all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series to
which such Event of Default is applicable);


 


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


 


(v)           to add to, change or eliminate any of the provisions
of this Indenture; provided that any such addition, change or
elimination shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental indenture
which is adversely affected by such change in or elimination of such provision;


 


(vi)          to secure the Securities;


 


(vii)         to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and/or 3.02;


 


(viii)        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(b);


 


(ix)           to provide for the issuance of uncertificated
Securities of one or more series in addition to or in place of certificated
Securities;


 


(x)            to conform any provision hereof to the requirements
of the Trust Indenture Act or otherwise as necessary to comply with applicable
law;


 


(xi)           to cure any ambiguity or to correct or supplement
any provision herein which may be defective or inconsistent with any other
provision herein;


 


(xii)          to modify the provisions of Article XIII of this
Indenture with respect to the subordination of Outstanding Securities of any
series in a manner not materially adverse to the Holders thereof; or


 


(xiii)         to make any other provisions with respect to matters
or questions arising under this Indenture; provided such other
provisions as may be made shall not adversely affect the interests of the
Holders of Outstanding Securities of any series in any material respect.


 


SECTION 9.02                  Supplemental Indentures with
Consent of Holders.  (a)  With the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
all series affected by such supplemental indenture (acting as one class), by
Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the 


 


45

















 


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,


 


(i)            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 that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02,
or change any Place of Payment where, or the currency, currencies or currency
unit or units in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or affect adversely the terms, if any, of
conversion or exchange of any Security into cash or any other securities or
property of the Company or of any other Person,


 


(ii)           reduce the percentage in aggregate 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,


 


(iii)          change any obligation of the Company, with respect
to Outstanding Securities of a series, to maintain an office or agency in the
places and for the purposes specified in Section 10.02 for such series,


 


(iv)          modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide with respect to any
particular series the right to condition the effectiveness of any supplemental
indenture as to that series on the consent of the Holders of a specified
percentage of the aggregate principal amount of Outstanding Securities of such
series (which provision may be made pursuant to Section 3.02 without the
consent of any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes
in this Section, or the deletion of this proviso, in accordance with the
requirements of Section 6.11(b) and 9.01(vii); or


 


(v)           modify the provisions of Article XIII of this
Indenture with respect to the subordination of Outstanding Securities of any
series in a manner materially adverse to the Holders thereof.


 


(b)           For purposes of this Section 9.02, if the Securities
of any series are issuable upon the exercise of warrants or subscription
rights, each holder of an unexercised and unexpired warrant or subscription
right with respect to such series shall be deemed to be a Holder of Outstanding
Securities of such series in the amount issuable upon the exercise of such
warrant or subscription right. For such purposes, the ownership of any such
warrant or subscription right 


 


46

















 


shall be determined by the Company in a manner consistent with
customary commercial practices. The Trustee for such series shall be entitled
to rely on an Officer’s Certificate as to the principal amount of Securities of
such series in respect of which consents shall have been executed by holders of
such warrants or subscription rights.


 


(c)           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 9.03                  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 provided with, and (subject to Section 6.01) shall be fully protected
in relying upon, an Opinion of Counsel and an Officer’s Certificate 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,
immunities or liabilities under this Indenture or otherwise.


 


SECTION 9.04                  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 theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.


 


SECTION 9.05                  Conformity with Trust
Indenture Act.  Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.


 


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


 


ARTICLE X

Covenants


 


SECTION 10.01                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 


 


47

















 


pay
the principal of (and premium, if any, on) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities and
this Indenture.


 


SECTION 10.02                Maintenance of Office or
Agency.  (a)  If
Securities of a series are issuable only as Securities, the Company will
maintain in each Place of Payment for such series 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 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
maintain (i) in the Borough of Manhattan, The City of New York, an office or
agency where any Securities may be presented or surrendered for payment, where
any Securities may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (ii) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located outside
the United States, an office or agency where Securities of that series may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series, if any); provided, however,
that if the Securities of that series are listed on any stock exchange located
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in any required
city located outside the United States, so long as the Securities of that
series are listed on such exchange, and (iii) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States, an office or agency where any Securities of that series
may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served.  The Company initially
appoints the Trustee, acting through its Corporate Trust Office, as its agent
for said purposes.  The Company will give
prompt written notice to the Trustee and the Holders of the location, and any
change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.


 


(b)           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 accordance with the requirements
set forth above for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee and the Holders of any such
designation or rescission and of any change in the location of any such other
office or agency.


 


SECTION 10.03                Money for Securities
Payments to be Held in Trust.  (a)  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
(and premium, if any, on) or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons 


 


48

















 


entitled
thereto a sum in the relevant currency (or a sufficient number of currency
units, as the case may be) sufficient to pay the principal (and premium, if
any, on) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee in writing of its action or failure so to act.


 


(b)           Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, at or prior to the opening of
business on each due date of the principal of (and premium, if any, on) or
interest, if any, on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.


 


(c)           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:


 


(i)            comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent;


 


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


 


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


 


(d)           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.


 


(e)           Any money or U.S. Government Obligation  (including the proceeds thereof and the
interest thereon) deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, on or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal and premium, if any, or interest has
become due and payable shall be paid to the Company (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) or (if then held by the Company) shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) 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 


 


49

















 


thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense and at the direction 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 the Borough of Manhattan, The City
of New York, notice that such money remains unclaimed and that, after a date
specified herein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company. All moneys payable to the Company by the Trustee or any Paying
Agent as provided in the preceding sentence shall be paid to the Company on May
31 of each year.


 


SECTION 10.04                Statement by Officers as to
Default.  The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year (which as of the date hereof
ends on December 31), a written certificate covering the preceding fiscal year
signed by the principal executive officer, the principal financial officer or
the principal accounting officer of the Company, stating that:


 


(i)            a review of the activities of the Company during
such year and of performance under this Indenture has been made under his
supervision; and


 


(ii)           to his knowledge, based on such review, the Company
has fulfilled all its obligations, and has complied with all conditions and
covenants, under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, condition or covenant,
specifying each such default known to him and the nature and status thereof.
For purposes of this Section 10.04, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.


 


SECTION 10.05                Waiver of Certain Covenants.  Except as
otherwise specified as contemplated by Section 3.02 for Securities
of such series, the Company may, with respect to the Securities of such series,
omit in any particular instance, to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 3.02(a), 9.01(ii)
or 9.01(vii) for the benefit of Holders of such series if before the time for
such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of such series shall 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 XI

Redemption of Securities


 


SECTION 11.01                Applicability of Article.  Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section 3.02
for Securities of any series) in accordance with this Article.


 


50
















 


SECTION 11.02                Election to Redeem; Notice
to Trustee.  If the Company shall desire to exercise the
right to redeem all, or, as the case may be, any part of the Securities of any
series, the Company shall, at least 45 days but not more than 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee) notify the Trustee in writing of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer’s Certificate evidencing compliance with such restriction.


 


SECTION 11.03                Selection by Trustee of
Securities to be Redeemed.  (a)  If
less than all the Securities of any series are to be redeemed, 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 the Trustee in accordance with its
customary practices or as the Company may direct in writing in accordance with
DTC procedures.


 


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


 


(c)           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 11.04                Notice of Redemption.  (a)  Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
as provided in Section 1.06.


 


(b)           Each such notice of redemption shall specify the
following:


 


(i)            the Redemption Date;


 


(ii)           the Redemption Price or, if not then ascertainable,
the manner of calculation thereof;


 


(iii)          the Place or Places of Payment;


 


(iv)          that the Securities of such series are being
redeemed at the option of the Company pursuant to provisions contained in the
terms of the Securities of such series or in a supplemental indenture
establishing such series, if such be the case;


 


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


 


(vi)          a brief statement of the facts permitting such
redemption;


 


51

















 


(vii)         that on the Redemption Date the Redemption Price
will become due and payable upon each Security redeemed;


 


(viii)        that payment will be made upon presentation and
surrender of the applicable Securities;


 


(ix)           that any interest accrued to the Redemption Date
will be paid as specified in said notice;


 


(x)            that the redemption is pursuant to the sinking fund,
if such is the case; and


 


(xi)           that on and after said Redemption Date any interest
thereon or on the portions thereof to be redeemed will cease to accrue.


 


(c)           If less than all the Securities of any series are to
be redeemed, the notice of redemption shall specify the registration and, if
any, CUSIP numbers of the Securities of such series to be redeemed.  In case any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
Redemption Date, upon surrender of such Security, a new Security or Securities
of such series in aggregate principal amount equal to the unredeemed portion
thereof will be issued, or, in the case of Securities providing appropriate
space for such notation, at the option of the Holders, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion thereof.


 


(d)           Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or by the Trustee in
the name and at the expense and written request of the Company and such written
request shall be given to the Trustee 15 days prior to the date of the giving
of the notice of redemption or such lesser time as may be agreed to by the
Trustee.  The notice of redemption if
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.  In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Security.


 


SECTION 11.05                Deposit of Redemption Price.  On or before the opening of
business on 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 10.03) an amount of money in
the relevant currency (or a sufficient number of currency units, as the case
may be) 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.


 


SECTION 11.06                Securities Payable on
Redemption Date.  (a)  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 and accrued interest) such Securities shall cease to bear and accrue any
interest. Upon surrender of any such Security 


 


52

















 


for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with any accrued but unpaid interest
to, but excluding, the Redemption Date; provided, however, that
unless otherwise specified as contemplated by Section 3.02, installments of
accrued and unpaid interest on Securities whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of Section
3.08.


 


(b)           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
11.07                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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities of the same series and Stated Maturity, 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 or, in the case of Securities providing appropriate space for
such notation, at the option of the Holder, the Trustee, in lieu of delivering
a new Security or Securities as aforesaid, may make a notation on such Security
of the Payment of the redeemed portion thereof.


 


ARTICLE XII

Sinking Funds


 


SECTION 12.01                Applicability of Article.  (a)  The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 3.02 for Securities of
such series.


 


(b)           The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment”, and any payment in excess of such
minimum amount provided for by the terms of Securities of any series is herein
referred to as an “optional sinking fund payment”. If provided for by
the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.


 


SECTION 12.02                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 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 the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the 


 


53

















 


terms
of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and the outstanding principal
amount thereof credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.


 


SECTION
12.03                Redemption of Securities for
Sinking Fund.  Not less than 60 days prior to each sinking
fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in Section
11.03 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 11.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 11.06 and 11.07.


 


ARTICLE XIII

Subordination of Securities


 


SECTION 13.01                Securities Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder
of a Security, by its acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article, the
payment of the principal of (and premium, if any) and interest, if any, on each
and all of the Securities are hereby expressly made subordinate in right of
payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Indebtedness.


 


Each Holder, by its
acceptance thereof, waives all notice of acceptance of the subordination
provisions contained herein by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred and waives reliance by each such holder upon
said provisions.


 


SECTION 13.02                Payment Over of Proceeds Upon Dissolution, Etc. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in connection
with the Company’s insolvency or bankruptcy (each such event, if any, herein
sometimes referred to as a “Proceeding”), then the holders of Senior
Indebtedness shall be entitled to receive payment in full of principal of (and
premium, if any) and interest, if any, on such Senior Indebtedness, or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness,
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company (including any
series of the Securities) subordinated to the payment of the Securities, such
payment or distribution being hereinafter referred to as a “Junior Subordinated
Payment”), on account of principal of (or premium, if any) or interest, if any,
on the Securities or on account of the 


 


54

















 


purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Indebtedness shall be entitled to receive, for application to
the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, which may be payable or deliverable in respect of the Securities in
any such Proceeding.


 


In the event that,
notwithstanding the foregoing provisions of this Section, the Trustee or the
Holder of any Security shall have received any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, including any Junior Subordinated Payment, before all Senior
Indebtedness is paid in full or payment thereof is provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, and if written notice thereof shall, at least three Business Days
prior to the time of such payment or distribution, have been received by a
Responsible Trust Officer or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.


 


For purposes of this Article
only, the words “any payment or distribution of any kind or character, whether
in 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
which securities are subordinated in right of payment to all then outstanding
Senior Indebtedness to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the sale of all or substantially all of
its assets as an entirety to another Person or the liquidation or dissolution
of the Company following the sale of all or substantially all of its assets as
an entirety to another Person upon the terms and conditions set forth in Article
VIII shall not be deemed a Proceeding for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by sale such assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.


 


SECTION 13.03                Prior Payment to Senior
Indebtedness Upon Acceleration of Securities. In the event that any
Securities are declared due and payable before their Stated Maturity, then and
in such event the holders of the Senior Indebtedness outstanding at the time
such Securities so become due and payable shall be entitled to receive payment
in full of all amounts due on or in respect of such Senior Indebtedness
(including any amounts due upon acceleration), or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest, if any, on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with this Indenture or as otherwise specified as 


 


55

















 


contemplated by Section 3.02
for the Securities of any series by delivering and crediting as contemplated by
Section 3.02 for the Securities of any series Securities which have been
acquired (upon redemption or otherwise) prior to such declaration of
acceleration.


 


In the event that,
notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of
this Section, and if written notice of such fact shall, at least three Business
Days prior to the time of such payment, have been received by a Responsible
Trust Officer or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.


 


The provisions of this Section
shall not apply to any payment with respect to which Section 13.02 would be
applicable.


 


SECTION 13.04                No Payment When Senior
Indebtedness in Default. In the event and during the continuation of
any default in the payment of principal of (or premium, if any) or interest, if
any, on any Senior Indebtedness, or in the event that any event of default with
respect to any Senior Indebtedness shall have occurred and be continuing and
shall have resulted in such Senior Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded
or annulled, or in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event of default, then no
payment or distribution of any kind or character, whether in cash, properties
or securities (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest, if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary; provided, however, that nothing
in this Section shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by Section
3.02 for the Securities of any series by delivering and crediting pursuant to Section
12.02 (or as otherwise specified as contemplated by Section 3.02 for the
Securities of any series) Securities which have been acquired (upon redemption
or otherwise) prior to such default in payment or event of default.


 


In the event that,
notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of
this Section, and if written notice thereof shall, at least three Business Days
or prior to the time of such payment, have been received by the Responsible
Trust Officer or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.


 


The provisions of this Section
shall not apply to any payment with respect to which Section 13.02 would be
applicable.


 


SECTION 13.05                Payment Permitted if No
Default. Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent (i) the Company, at any time except
during the pendency of any Proceeding referred to in Section 13.02 or under the
conditions described in Sections 13.03 and 13.04, from making payments at any
time of principal of (and premium, if any) or interest, if any, on the
Securities, or (ii) the application by the Trustee of any money or U.S.
Government Obligations deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest, if any, on the 


 


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Securities or the retention
of such payment by the Holders, if, at least three Business Days prior to the
time of such application by the Trustee, a Responsible Trust Officer did not
have knowledge that such payment would have been prohibited by the provisions
of this Article.


 


SECTION 13.06                Subrogation to Rights of
Holders of Senior Indebtedness. Subject to the payment in
full of all Senior Indebtedness, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article (equally and ratably
with the holders of all Indebtedness of the Company which by its express terms
is subordinated to Senior Indebtedness of the Company to substantially the same
extent as the Securities are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest, if any, on the Securities
shall be paid in full. For purposes of such subrogation or assignment, no
payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Indebtedness, and
the Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.


 


SECTION 13.07                Provisions Solely to Define
Relative Rights. The provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall (i) impair, as between the Company
and the Holders of the Securities, the obligations of the Company, which are
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest, if any, on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (ii) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than their rights in relation to
the holders of Senior Indebtedness; or (iii) prevent the Trustee or the Holder
of any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture including, without limitation, filing and
voting claims in any Proceeding, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.


 


SECTION 13.08                Trustee to Effectuate
Subordination. Each Holder of a Security by his or her acceptance
thereof authorizes and directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.


 


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SECTION 13.09                No Waiver of Subordination
Provisions. No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.


 


SECTION 13.10                Notice to Trustee. The Company
shall give prompt written notice to the Trustee of any fact known to the
Company which would prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until a
Responsible Trust Officer shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor (whether or not the facts contained in such notice are
true); provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such 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 within three Business Days prior to such
date.


 


Subject to the provisions of
Section 6.01, the Trustee shall be entitled to conclusively rely on the
delivery to it of a written notice by a person representing himself to be a
holder of Senior Indebtedness (or a trustee or agent on behalf of such holder)
to establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee or agent on behalf of any such holder). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such person, the extent to
which such person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such person under this Article,
and if such evidence is not furnished, the Trustee may defer any payment which
it may be required to make for the benefit of such person pursuant to the terms
of this Indenture pending judicial determination as to the rights of such
person to receive such payment.


 


SECTION 13.11                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,
subject to the provisions of Article VI, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such Proceeding is pending, or a certificate of
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee
for the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable 


 


58

















 


thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.


 


SECTION 13.12                Trustee Not Fiduciary For
Holders of Senior Indebtedness. The Trustee, in its
capacity as trustee under this Indenture, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.


 


SECTION 13.13                Rights of Trustee as Holder
of Senior Indebtedness; Preservation of Trustee’s Rights. The Trustee
in its individual capacity shall be entitled to all the rights set forth in
this Article with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.07.


 


SECTION 13.14                Article Applicable to Paying
Agents. In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term “Trustee”
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.


 


SECTION 13.15                Certain Conversions or
Exchanges Deemed Payment. For the purposes of this Article only, (i) the
issuance and delivery of junior securities upon conversion or exchange of
Securities shall not be deemed to constitute a payment or distribution on
account of the principal of (or premium, if any) or interest, if any, on
Securities or on account of the purchase or other acquisition of Securities,
and (ii) the payment, issuance or delivery of cash, 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 Section, the term “junior securities” means (i) shares
of any stock of any class of the Company and (ii) securities of the Company
which are subordinated in right of payment to all Senior Indebtedness 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.


 


ARTICLE XIV

Defeasance and Covenant Defeasance


 


SECTION 14.01                Company’s Option to Effect
Defeasance or Covenant Defeasance. The Company may elect, at
its option at any time, to have Section 14.02 or Section 14.03 applied to any
Securities upon compliance with the conditions set forth below in this Article.
Any such election shall be evidenced by a Board Resolution.


 


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SECTION 14.02                Defeasance and Discharge.  Upon the Company’s exercise of its option (if
any) to have this Section applied to any Securities, the Company shall be
deemed to have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 14.04 are satisfied (“Defeasance”). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness 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
and upon Company Request, shall execute proper instruments acknowledging the
same), subject to the following, which shall survive until otherwise terminated
or discharged hereunder: (1) the Company’s obligations with respect to such
Securities under Sections 3.05, 3.06, 3.07, 10.02 and 10.03; (2) the rights,
powers, trusts, duties and immunities of the Trustee hereunder; and (3) 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 14.03 applied to such
Securities.


 


SECTION 14.03                Covenant Defeasance.  Upon the Company’s exercise of its option (if
any) to have this Section applied to any Securities (1) the Company shall be
released from its obligations under Section 8.01 and any covenants provided
pursuant to 9.01(ii) for the benefit of the Holders of such Securities; and (2)
the occurrence of any event specified in Sections 5.01(iv) (with respect to any
of Section 8.01 and any such covenants provided pursuant to Section 9.01(ii))
shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 14.04 are satisfied (“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 5.01(iv)), whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.


 


Notwithstanding any Covenant Defeasance with
respect to Section 8.01, any Person that would otherwise have been required to
assume the obligations of the Company pursuant to said Section shall be
required, as a condition to any merger, consolidation, conveyance or transfer
contemplated thereby, to assume the obligations of the Company to the Trustee
under Sections 6.07 and 14.05.


 


SECTION 14.04                Conditions to Defeasance or
Covenant Defeasance. The following shall be the conditions to the
application of Section 14.02 or Section 14.03 to any Securities:


 


(i)            The Company shall irrevocably have deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefits of the Holders of such Securities, (A) money,
or (B) 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, money, or (C) a combination thereof, in each case in an
amount sufficient to pay and discharge, and which shall be applied by the 


 


60

















 


Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Securities due on or
before the respective Stated Maturities or the Redemption Date, in accordance
with the terms of this Indenture and such Securities; provided that the
Company shall deliver to the Trustee an opinion of a nationally recognized firm
of independent public accountants expressed in a written certification, as to
the sufficiency of deposits made by the Company pursuant to this Section.


 


(ii)           In the event of an election to have Section 14.02
apply to any Securities, 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 the case of either (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.


 


(iii)          In the event of an election to have Section 14.03
apply to any Securities, 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.


 


(iv)          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 5.01(v) and
(vi), 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).


 


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


 


(vi)          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 the Investment Company Act or exempt from registration
thereunder.


 


(vii)         If such Securities are to be redeemed prior to
Stated Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made.


 


61

















 


(viii)        The Company shall have delivered to the Trustee an
Officer’s 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 14.05                Deposited Money or U.S.
Government Obligations to Be Held in Trust; Miscellaneous Provisions.  Subject to the provisions of Section 10.03(e),
all money or U.S. Government Obligations (including the proceeds thereof and
the interest thereon) deposited with the Trustee pursuant to Section 14.04 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.


 


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 deposited pursuant to Section 14.04 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 or U.S. Government Obligations held
by it as provided in Section 14.04 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 or in the
opinion of such other Persons delivered to the Trustee as shall be reasonably
satisfactory to the Trustee (which may be the same opinion delivered to the
Trustee under Section 14.04(i)), 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 14.06                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 14.02 or 14.03
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 14.06
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.


 


* * *


 


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


 


62

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed, and with respect
to the Company its corporate seal to be hereunto affixed and attested, all as
of the day and year first above written.


 


	
   

  	
  KNOLL,
  INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/
  Barry L. McCabe

  
	
   

  	
   

  	
  Barry
  L. McCabe

  
	
   

  	
   

  	
  Executive Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert T. Jones

  
	
   

  	
   

  	
  Robert
  T. Jones

  
	
   

  	
   

  	
  Vice
  President

  



 


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