exv4w3






Exhibit 4.3




 

 










TELECOMMUNICATION SYSTEMS, INC.

Issuer




AND




[               ]

Trustee




 






INDENTURE




Dated as of [   ], [        ]




 






Subordinated Debt Securities




 

 










 









 












CROSS-REFERENCE TABLE (1)




	 	 	 
	Section of Trust Indenture Act of 1939, as Amended	 	Indenture
	310(a)
	 	7.10
	310(b)
	 	7.09; 7.11
	310(c)
	 	Inapplicable
	311(a)
	 	7.14(a)
	311(b)
	 	7.14(b)
	311(c)
	 	Inapplicable
	312(a)
	 	5.02(a)
	312(b)
	 	5.02(c)
	312(c)
	 	5.02(c)
	313(a)
	 	5.04(a)
	313(b)
	 	5.04(b)
	313(c)
	 	5.04(a); 5.04(b)
	313(d)
	 	5.04(c)
	314(a)
	 	5.03; 4.06
	314(b)
	 	Inapplicable
	314(c)
	 	13.07
	314(d)
	 	Inapplicable
	314(e)
	 	13.07
	314(f)
	 	Inapplicable
	315(a)
	 	7.01(a); 7.03
	315(b)
	 	7.02
	315(c)
	 	7.01
	315(d)
	 	7.01(b); 7.01(c)
	315(e)
	 	6.07; 7.07
	316(a)
	 	6.06 8.04
	316(b)
	 	6.04
	316(c)
	 	8.01
	317(a)
	 	6.02
	317(b)
	 	4.03
	318(a)
	 	13.08








 




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




 









 










TABLE OF CONTENTS(2)




	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 1.01 Definitions of Terms
	 	 	1	 
	Section 1.02 Rules of Construction
	 	 	6	 
	Section 1.03 Form of Documents Delivered to Trustee
	 	 	6	 
	 
	 	 	 	 
	ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
	 	 	7	 
	Section 2.01 Designation and Terms of Securities
	 	 	7	 
	Section 2.02 Form of Securities and Trustee’s Certificate
	 	 	9	 
	Section 2.03 Denominations: Provisions for Payment
	 	 	10	 
	Section 2.04 Execution and Authentication
	 	 	11	 
	Section 2.05 Registration of Transfer and Exchange
	 	 	12	 
	Section 2.06 Temporary Securities
	 	 	13	 
	Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities
	 	 	13	 
	Section 2.08 Cancellation
	 	 	14	 
	Section 2.09 Benefits of Indenture
	 	 	14	 
	Section 2.10 Authenticating Agent
	 	 	15	 
	Section 2.11 Global Securities
	 	 	15	 
	 
	 	 	 	 
	ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
	 	 	16	 
	Section 3.01 Redemption
	 	 	16	 
	Section 3.02 Notice of Redemption
	 	 	17	 
	Section 3.03 Payment Upon Redemption
	 	 	18	 
	Section 3.04 Sinking Fund
	 	 	18	 
	Section 3.05 Satisfaction of Sinking Fund Payments with Securities
	 	 	19	 
	Section 3.06 Redemption of Securities for Sinking Fund
	 	 	19	 
	 
	 	 	 	 
	ARTICLE IV COVENANTS
	 	 	19	 
	Section 4.01 Payment of Principal, Premium and Interest
	 	 	19	 
	Section 4.02 Maintenance of Office or Agency
	 	 	20	 






 









 






	 	 	 	 	 
	Section 4.03 Paying Agents
	 	 	20	 
	Section 4.04 Appointment to Fill Vacancy in Office of Trustee
	 	 	21	 
	Section 4.05 Compliance with Consolidation Provisions
	 	 	21	 
	Section 4.06 Statement by Officers as to Default
	 	 	22	 
	 
	 	 	 	 
	ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	22	 
	Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders
	 	 	22	 
	Section 5.02 Preservation Of Information; Communications With Securityholders
	 	 	22	 
	Section 5.03 Reports by the Company
	 	 	23	 
	Section 5.04 Reports by the Trustee
	 	 	23	 
	 
	 	 	 	 
	ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 	 	23	 
	Section 6.01 Events of Default
	 	 	23	 
	Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	25	 
	Section 6.03 Application of Moneys Collected
	 	 	27	 
	Section 6.04 Limitation on Suits
	 	 	27	 
	Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver
	 	 	28	 
	Section 6.06 Control by Securityholders
	 	 	29	 
	Section 6.07 Undertaking to Pay Costs
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VII CONCERNING THE TRUSTEE
	 	 	30	 
	Section 7.01 Certain Duties and Responsibilities of Trustee
	 	 	30	 
	Section 7.02 Notice of Defaults
	 	 	31	 
	Section 7.03 Certain Rights of Trustee
	 	 	31	 
	Section 7.04 Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	32	 
	Section 7.05 May Hold Securities
	 	 	33	 
	Section 7.06 Moneys Held in Trust
	 	 	33	 
	Section 7.07 Compensation and Reimbursement
	 	 	33	 
	Section 7.08 Reliance on Officers’ Certificate
	 	 	34	 
	Section 7.09 Disqualification; Conflicting Interests
	 	 	34	 
	Section 7.10 Corporate Trustee Required; Eligibility
	 	 	34	 






ii









 






	 	 	 	 	 
	Section 7.11 Resignation and Removal; Appointment of Successor
	 	 	34	 
	Section 7.12 Acceptance of Appointment By Successor
	 	 	36	 
	Section 7.13 Merger, Conversion, Consolidation or Succession to Business
	 	 	37	 
	Section 7.14 Preferential Collection of Claims Against the Company
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VIII CONCERNING THE SECURITYHOLDERS
	 	 	38	 
	Section 8.01 Evidence of Action by Securityholders
	 	 	38	 
	Section 8.02 Proof of Execution by Securityholders
	 	 	38	 
	Section 8.03 Who May be Deemed Owners
	 	 	38	 
	Section 8.04 Certain Securities Owned by Company Disregarded
	 	 	39	 
	Section 8.05 Actions Binding on Future Securityholders
	 	 	39	 
	 
	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	40	 
	Section 9.01 Supplemental Indentures Without the Consent of Securityholders
	 	 	40	 
	Section 9.02 Supplemental Indentures With Consent of Securityholders
	 	 	41	 
	Section 9.03 Effect of Supplemental Indentures
	 	 	42	 
	Section 9.04 Securities Affected by Supplemental Indentures
	 	 	42	 
	Section 9.05 Execution of Supplemental Indentures
	 	 	42	 
	 
	 	 	 	 
	ARTICLE X SUCCESSOR ENTITY
	 	 	43	 
	Section 10.01 Company May Consolidate, Etc.
	 	 	43	 
	Section 10.02 Successor Entity Substituted
	 	 	44	 
	Section 10.03 Evidence of Consolidation, Etc.
	 	 	44	 
	 
	 	 	 	 
	ARTICLE XI SATISFACTION AND DISCHARGE; DEFEASANCE
	 	 	44	 
	Section 11.01 Satisfaction and Discharge
	 	 	44	 
	Section 11.02 Defeasance
	 	 	45	 
	Section 11.03 Deposited Moneys to be Held in Trust
	 	 	47	 
	Section 11.04 Payment of Moneys Held by Paying Agents
	 	 	47	 
	Section 11.05 Repayment to Company
	 	 	47	 
	Section 11.06 Reinstatement
	 	 	48	 
	 
	 	 	 	 
	ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	48	 
	Section 12.01 No Recourse
	 	 	48	 






iii









 






	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS PROVISIONS
	 	 	49	 
	Section 13.01 Effect on Successors and Assigns
	 	 	49	 
	Section 13.02 Actions by Successor
	 	 	49	 
	Section 13.03 Surrender of Company Powers
	 	 	49	 
	Section 13.04 Notices
	 	 	49	 
	Section 13.05 Governing Law
	 	 	49	 
	Section 13.06 Treatment of Securities as Debt
	 	 	50	 
	Section 13.07 Compliance Certificates and Opinions
	 	 	50	 
	Section 13.08 Payments on Business Days
	 	 	50	 
	Section 13.09 Conflict with Trust Indenture Act
	 	 	51	 
	Section 13.10 Counterparts
	 	 	51	 
	Section 13.11 Separability
	 	 	52	 
	Section 13.12 Assignment
	 	 		 
	 
	 	 	 	 
	ARTICLE IV SUBORDINATION OF SECURITIES
	 	 	52	 
	Section 14.01 Securities Subordinate to Senior Indebtedness
	 	 	52	 
	Section 14.02 Trustee and Holders May Rely on Certificate of Liquidating Agent;
Trustee May Require Further Evidence as to 
	 	 	 	 
	     Ownership of Senior Indebtedness
	 	 	54	 
	Section 14.03 Payment Permitted if No Default
	 	 	55	 
	Section 14.04 Trustee Not Charged with Knowledge of Prohibition
	 	 	55	 
	Section 14.05 Trustee to Effectuate Subordination
	 	 	56	 
	Section 14.06 Rights of Trustee as Holder of Senior Indebtedness
	 	 	56	 
	Section 14.07 Provisions Applicable to Paying Agents
	 	 	56	 








 




			
	(2)	 	This Table of Contents does not constitute part of the Indenture and shall not have any
bearing on the interpretation of any of its terms or provisions.






iv











 





     INDENTURE, dated as of [   ], [         ], between Telecommunication Systems, Inc., a
Maryland corporation (the “Company”), and [   ], as trustee (the “Trustee”):



     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of unsecured subordinated debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this Indenture provided, as registered
Securities without coupons, to be authenticated by the certificate of the Trustee;



     WHEREAS, to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and



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



     NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the
holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit
of the holders of Securities or of series thereof.



ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




Section 1.01 Definitions of Terms.




     The terms defined in this Section (except as in this Indenture otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section and shall include
the plural as well as the singular. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended, or that are by reference in said Trust Indenture Act
defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the execution of this
instrument.



     “Authenticating Agent” means an authenticating agent with respect to all or any of the series
of Securities appointed with respect to all or any series of the Securities by the Trustee pursuant
to Section 2.10.



     “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief
of debtors.



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



 









 





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



    “Business Day” means, with respect to any series of Securities, any day other than a day on
which Federal or State banking institutions in the Borough of Manhattan, The City of New York, are
authorized or obligated by law, executive order or regulation to close.



    “Certificate” means a certificate signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company. The Certificate need not
comply with the provisions of Section 13.07.



     “Commission” means the United States Securities and Exchange Commission.



    “Company” means Telecommunication Systems, Inc., a corporation duly organized and existing
under the laws of the State of Maryland, and, subject to the provisions of Article X, shall also
include its successors and assigns.



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



    “Covenant Defeasance” has the meaning given in Section 11.02.



    “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.



    “Default” means any event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.



    “Defaulted Interest” has the meaning given in Section 2.03.



    “Depositary” means, with respect to Securities of any series, for which the Company shall
determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under
the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable
statute or regulation, which, in each case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.



    “Event of Default” means, with respect to Securities of a particular series any event
specified in Section 6.01, continued for the period of time, if any, therein designated.



    “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute
or statutes thereto.



2









 





    “Global Security” means, with respect to any series of Securities, a Security executed by the
Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction,
all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.



    “Governmental Obligations” means securities that are (i) direct obligations (other than
obligations subject to variation in principal repayment) of the United States of America for the
payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable prior to maturity at the
option of the issuer thereof, and shall also include a depositary 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 Governmental Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such depositary receipt.



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



    “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 in accordance
with the terms 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 2.01.



    “Interest Payment Date”, when used with respect to any installment of interest on a Security
of a particular series, means the date specified in such Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.



    “Legal Defeasance” has the meaning given in Section 11.02.



    “Officers’ Certificate” means a certificate signed by the President or a Vice President and by
the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is delivered to the Trustee in accordance
with the terms hereof. Each such certificate shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.



3









 





    “Opinion of Counsel” means an opinion in writing of legal counsel, who may be an employee of
or counsel for the Company that is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.



    “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 6.01.



    “Outstanding”, when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the Company) or
shall have been irrevocably set aside and segregated in trust by the Company (if the Company shall
act as its own paying agent); provided, however, that if such Securities or portions of such
Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article III or provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07; 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, 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 6.01.



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



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



    “Responsible Officer” when used with respect to the Trustee means the Chairman of the Board of
Directors, the President, any Vice President, the Secretary, the Treasurer, any trust officer, any
corporate trust officer or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.



4









 





    “Securities” means the debt Securities authenticated and delivered under this Indenture.



    “Securityholder”, “holder of Securities”, “registered holder”, or other similar term, means
the Person or Persons in whose name or names a particular Security shall be registered on the books
of the Company kept for that purpose in accordance with the terms of this Indenture.



    “Security Register” has the meaning given in Section 2.05.



    “Security Registrar” has the meaning given in Section 2.05.



     “Senior Indebtedness” means the principal of (and premium, if any) and interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an allowed claim under
applicable law) on any indebtedness of the Company, incurred or assumed, unless, in the case of any
particular indebtedness, the instrument creating or evidencing the same or pursuant to which the
same is outstanding expressly provides that such indebtedness shall not be senior in right of
payment to the Securities. Notwithstanding the foregoing, “ Senior Indebtedness “ shall not include
(i) any indebtedness of the Company to a Subsidiary of the Company or any Affiliate of the Company
or any of such Affiliate’s Subsidiaries, (ii) indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of the Company or any Subsidiary of the Company
(including, without limitation, amounts owed for compensation), (iii) indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods, materials or services,
(iv) any liability for federal, state, local or other taxes owed or owing by the Company, (v) that
portion of any indebtedness incurred in violation of an incurrrence test applicable to a series of
the Securities, (vi) that portion of any indebtedness which, when incurred and without respect to
any election under Section 1111(b) of Title 11, United States Code, is without recourse to the
Company and (vii) that portion of any indebtedness which is, by its express terms, subordinated in
right of payment to the Securities.



    “Subsidiary” means, with respect to any Person, (i) any corporation at least a majority of
whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, limited liability company, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a
general partner.



    “Trustee”
means [         ], and, subject to the provisions of Article VII, shall also include its
successors and assigns, and, if at any time there is more than one Person acting in such capacity
hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to a
particular series of the Securities shall mean the trustee with respect to that series.



    “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, subject to the
provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date of execution of this
instrument.



5









 





    “Voting Stock”, as applied to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having such power only by reason of the
occurrence of a contingency.



Section 1.02 Rules of Construction.




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



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



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



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



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



     (5) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B
or both”, not “either A or B but not both”);



     (6) the masculine gender includes the feminine and the neuter; and



     (7) references to agreements and other instruments include subsequent amendments and
supplements thereto.



Section 1.03 Form of Documents Delivered to Trustee




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



6









 





     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion with respect to the matters upon which his
certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company, a governmental official or officers or any other Person or Persons,
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, opinion or representations with respect to such matters are erroneous.



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



ARTICLE II

ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES




Section 2.01 Designation and Terms of Securities.




     The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate
principal amount of Securities of that series from time to time authorized by or pursuant to a
Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto:




	 	(1)	 	the title of the Security of the series (which shall distinguish the Securities
of the series from all other Securities);
	 
	 	(2)	 	any limit upon the aggregate principal amount of the Securities of that series
that may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series), and if such series may be reopened from time
to time for the issuance of additional Securities of such series or to establish
additional terms of such series;
	 
	 	(3)	 	the date or dates on which the principal of the Securities of the series is
payable and the place(s) of payment;
	 
	 	(4)	 	the rate or rates at which the Securities of the series shall bear interest or
the manner of calculation of such rate or rates, if any;
	 
	 	(5)	 	the date or dates from which such interest shall accrue, the Interest Payment
Dates on which such interest will be payable or the manner of determination of such





7









 











	 	 	 	Interest Payment Dates, the place(s) of payment, and the record date or other method
for the determination of holders to whom interest is payable on any such Interest
Payment Dates;
	 
	 	(6)	 	the right, if any, to extend the interest payment periods and the duration of
such extension;
	 
	 	(7)	 	the period or periods within which, the price or prices at which and the terms
and conditions upon which, Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
	 
	 	(8)	 	the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions (including payments made in
cash in satisfaction of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at which, and the
terms and conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
	 
	 	(9)	 	any additional or different subordination terms applicable to the Securities of
the series;
	 
	 	(10)	 	the form of the Securities of the series including the form of the Trustee’s
certificate of authentication for such series;
	 
	 	(11)	 	if other than denominations of one thousand U.S. dollars ($1,000) or any
integral multiple thereof, the denominations in which the Securities of the series
shall be issuable;
	 
	 	(12)	 	any and all other terms with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any supplemental
indenture) including any terms which may be required by or advisable under United
States laws or regulations or advisable in connection with the marketing of Securities
of that series;
	 
	 	(13)	 	whether the Securities are issuable as a Global Security and, in such case, the
identity of the Depositary for such series;
	 
	 	(14)	 	whether the Securities will be convertible into and/or exchangeable for shares
of common stock or other securities of the Company and, if so, the terms and conditions
upon which such Securities will be so convertible, including the conversion price and
the conversion period, and any deletions from or modifications or additions to this
Indenture to permit or to facilitate the issuance of such convertible or exchangeable
Securities or the administration thereof;
	 
	 	(15)	 	if other than the principal amount thereof, the portion of the principal amount
of Securities of the series which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.01;




8









 












	 	(16)	 	any additional or different Events of Default or restrictive covenants provided
for with respect to the Securities of the series;
	 
	 	(17)	 	if applicable, that the Securities of the series, in whole or in specified
part, shall be defeasible pursuant to Section 11.02 and, if other than by a Board
Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
	 
	 	(18)	 	if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or interest on
any Securities of the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for any purpose,
including for purposes of the definition of “Outstanding” in Section 1.01;
	 
	 	(19)	 	the terms and conditions, if any, upon which the Company shall pay amounts in
addition to the stated interest, premium, if any and principal amounts of the
Securities of the series to any Securityholder that is not a United States person for
federal tax purposes;
	 
	 	(20)	 	any restrictions on transfer, sale or assignment of the Securities of the
series; and
	 
	 	(21)	 	whether and to what extent the Securities shall be guaranteed by any Person or
Persons.




All Securities of any one series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto. If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers’ Certificate setting forth the terms of the series. Securities of
any particular series may be issued at various times, with different dates on which the principal
or any installment of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates. Notwithstanding Section 2.01(2) and unless
otherwise expressly provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such series may be issued
up to the maximum aggregate principal amount authorized with respect to such series as increased.




Section 2.02 Form of Securities and Trustee’s Certificate.




     The Securities of any series and the Trustee’s certificate of authentication to be borne by
such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution and as set forth in an
Officers’ Certificate. The Securities may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved



9









 




thereon as the Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that
series may be listed, or to conform to usage.




Section 2.03 Denominations: Provisions for Payment.




     The Securities shall be issuable as registered Securities and in the denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(11). The
Securities of a particular series shall bear interest payable on the dates and at the rates
specified or provided for with respect to that series. Except as contemplated by Section 2.01(18),
the principal of and the interest on the Securities of any series, as well as any premium thereon
in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the
United States of America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York; provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register. Each Security shall be dated the date of its authentication by the
Trustee. Except as contemplated by Section 2.01(4), interest on the Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months. Except as contemplated by Section
2.01(5), the interest installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. In the event that any
Security of a particular series or portion thereof is called for redemption and the redemption date
is subsequent to a regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.03. Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Securities of the same
series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2)
below:



     (1) The Company may make payment of any Defaulted Interest on Securities to the Persons in
whose names such Securities (or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than



10









 




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 Securityholder at
his or her address as it appears in the Security Register (as hereinafter defined), 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record date.




     (2) The Company may make payment of any Defaulted Interest on any Securities in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee. Unless otherwise set forth in a Board
Resolution or one or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section
with respect to a series of Securities with respect to any Interest Payment Date for such series
shall mean either the fifteenth day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the month immediately
preceding the month in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day. Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Security.



Section 2.04 Execution and Authentication.




     The Securities shall be signed on behalf of the Company by its President, or one of its Vice
Presidents, or its Treasurer, or one of its Assistant Treasurers, under its corporate seal attested
by its Secretary or one of its Assistant Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any Person who shall have been
a President or Vice President thereof, or of any Person who shall have been the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary thereof, notwithstanding the fact that
at the time the Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the President or a Vice President, or the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company. The seal of the Company may be in the form of
a facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. The Securities may contain such notations, legends or endorsements required by law,
stock exchange rule or usage. A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be
conclusive evidence that the Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture. At any time and from
time to time after the execution and



11









 




delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the Company for the
authentication and delivery of such Securities, signed by its President or any Vice President and
its Secretary or any Assistant Secretary, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture and that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to any Bankruptcy Law or other insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding in equity or at law). The Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner that is not reasonably acceptable to the Trustee.




Section 2.05 Registration of Transfer and Exchange.




     (a) Securities of any series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the Borough of Manhattan, the City and State
of New York, or such other location designated by the Company, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.



     (b) The Company shall keep, or cause to be kept, at its office or agency designated for such
purpose in the Borough of Manhattan, the City and State of New York, or such other location
designated by the Company, a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall register
the Securities and the transfers of Securities as in this Article provided and which at all
reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall be appointed as
authorized by Board Resolution (the “Security Registrar”). Upon surrender for transfer of any
Security at the office or agency of the Company designated for such purpose, the Company shall
execute, the Trustee shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the Security presented
for a like aggregate principal amount. All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if so required by the
Company or the Security Registrar) by a written instrument or instruments of transfer, in form



12









 




satisfactory to the Company or the Security Registrar, duly executed by the registered holder
or by such holder’s duly authorized attorney in writing.




     (c) No service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any series, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer. The Company shall not be required (i) to issue, exchange or register the
transfer of any Securities during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the Outstanding Securities of the
same series and ending at the close of business on the day of such mailing, nor (ii) to register
the transfer of or exchange any Securities of any series or portions thereof called for redemption.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section
2.11 hereof.



Section 2.06 Temporary Securities.




     Pending the preparation of definitive Securities of any series, the Company may execute, and
the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without unnecessary delay the
Company will execute and will furnish definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose in the Borough of
Manhattan, the City and State of New York, or such other location designated by the Company, and
the Trustee shall authenticate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be
executed and furnished until further notice from the Company. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder.



Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.




     In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted Security shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to



13









 




the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft
of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, 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. In case any Security that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof. Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.




Section 2.08 Cancellation.




     All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.



Section 2.09 Benefits of Indenture.




     Nothing in this Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the Securities (and, with
respect to the provisions of Article XIV, the holders of Senior Indebtedness) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for



14









 




the sole benefit of the parties hereto and of the holders of the Securities (and, with respect
to the provisions of Article XIV, the holders of Senior Indebtedness).




Section 2.10 Authenticating Agent.




     So long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall
be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is
otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign immediately. Any Authenticating
Agent may at any time resign by giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such Authenticating Agent
and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.



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



Section 2.11 Global Securities.




     (a) If the Company shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that




	 	(1)	 	shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all or a portion of the Outstanding Securities of such series,




15









 












	 	(2)	 	shall be registered in the name of the Depositary or its nominee,
	 
	 	(3)	 	shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction and
	 
	 	(4)	 	shall bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to the Depositary, another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary.”





     (b) Notwithstanding the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05, only to the
Depositary for such series, another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee of such successor
Depositary.



     (c) If at any time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of
such series and the Company will execute, and subject to Section 2.05, the Trustee will
authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented
by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the
Securities of such series. In such event the Company will execute and subject to Section 2.05, the
Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. Upon the
exchange of the Global Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section
2.11(c) shall be registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.



ARTICLE III

REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS




Section 3.01 Redemption.



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     The Company may redeem the Securities of any series issued hereunder on and after the dates
and in accordance with the terms established for such series pursuant to Section 2.01 hereof.



Section 3.02 Notice of Redemption.




     (a) In case the Company shall desire to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series in accordance with the right reserved so to do, the
Company shall, or shall cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date fixed for redemption of
that series to such holders at their last addresses as they shall appear upon the Security Register
unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give such notice to the
holder of any Security of any series designated for redemption in whole or in part, or any defect
in the notice, shall not affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with any such restriction. Each such notice of redemption shall specify the
date fixed for redemption and the redemption price at which Securities of that series are to be
redeemed, and shall state that payment of the redemption price of such Securities to be redeemed
will be made at the office or agency of the Company in the Borough of Manhattan, the City and State
of New York, or such other location designated by the Company, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue, that the redemption is
for a sinking fund, if such is the case, and the CUSIP number of the Securities and state that no
representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in the
notice or printed on the Securities. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to be redeemed in whole or in part
shall specify the particular Securities to be so redeemed. In case any Security is to be redeemed
in part only, the notice that relates to such Security 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 principal amount equal
to the unredeemed portion thereof will be issued.



     (b) If less than all the Securities of a series are to be redeemed, the Company shall give the
Trustee at least 45 days’ notice (unless a shorter period is satisfactory to the Trustee) in
advance of the date fixed for redemption as to the aggregate principal amount of Securities of the
series to be redeemed, and thereupon the Trustee shall select in a manner that complies with the
requirements, if any, of any applicable stock exchange or which the Securities are listed and that
the Trustee deems appropriate and fair in its discretion and that may provide for the selection of
a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple



17









 




thereof) of the principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it
shall so elect, by delivery of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of the Securities of a
particular series for redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name as the Trustee or such paying
agent as it may deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit
to remain with, the Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be required under the provisions
of this Section.




Section 3.03 Payment Upon Redemption.




     (a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on
such Securities or portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the
notice, said Securities shall be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an Interest Payment Date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the applicable record date
pursuant to Section 2.03).



     (b) Upon presentation of any Security of such series that is to be redeemed in part only, the
Company shall execute and the Trustee shall authenticate and the office or agency where the
Security is presented shall deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented.



Section 3.04 Sinking Fund.




     The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the
retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of such series. The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and
any payment in excess of such minimum amount provided for by the terms of 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 3.05. Each sinking fund payment shall be applied to



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the redemption of Securities of any series as provided for by the terms of Securities of such
series.




Section 3.05 Satisfaction of Sinking Fund Payments with Securities.




     The Company,




	 	(1)	 	may deliver Outstanding Securities of a series (other than any Securities
previously called for redemption) and
	 
	 	(2)	 	may apply as a credit Securities of a series that 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 terms of such series, provided that such
Securities have not been previously so credited. Such Securities shall be received and
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 3.06 Redemption of Securities for Sinking Fund.




     Not less than 45 days (unless a shorter period is satisfactory to the Trustee) prior to each
sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers’ Certificate, 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 3.02 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 3.02. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner stated in Section
3.03.



ARTICLE IV

COVENANTS




Section 4.01 Payment of Principal, Premium and Interest.




     The Company will duly and punctually pay or cause to be paid the principal of (and premium, if
any) and interest on the Securities of each series at the time and place and in the manner provided
herein and established with respect to such Securities.




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Section 4.02 Maintenance of Office or Agency.




     So long as any series of the Securities remain Outstanding, the Company agrees to maintain an
office or agency in the Borough of Manhattan, the City and State of New York, or such other
location designated by the Company, with respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.02, where (i) Securities of that
series may be presented for payment, (ii) Securities of that series may be presented as herein
above authorized for registration of transfer and exchange, and (iii) notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture may be given or
served, such designation to continue with respect to such office or agency until the Company shall,
by written notice signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency in the Borough of Manhattan, the City and State of New York
for such purposes or any of them. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.



     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 the Borough of Manhattan, the City and State of New York, or such other location
designated by the Company, for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.



Section 4.03 Paying Agents.




     (a) If the Company shall appoint one or more paying agents for all or any series of the
Securities, other than the Trustee, the Company will cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section:




	 	(1)	 	that it will hold all sums held by it as such agent for the payment of the
principal of (and premium, if any) or interest on the Securities of that series
(whether such sums have been paid to it by the Company or by any other obligor of such
Securities) in trust for the benefit of the Persons entitled thereto;
	 
	 	(2)	 	that it will give the Trustee notice of any failure by the Company (or by any
other obligor of such Securities) to make any payment of the principal of (and premium,
if any) or interest on the Securities of that series when the same shall be due and
payable;




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	 	(3)	 	that it will, at any time during the continuance of any failure referred to in
the preceding paragraph (a)(2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such paying agent; and
	 
	 	(4)	 	that it will perform all other duties of paying agent as set forth in this
Indenture.





     (b) If the Company shall act as its own paying agent with respect to any series of the
Securities, it will on or before each due date of the principal of (and premium, if any) or
interest on Securities of that series, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Securities of that series until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or
any failure (by it or any other obligor on such Securities) to take such action. Whenever the
Company shall have one or more paying agents for any series of Securities, it will, prior to each
due date of the principal of (and premium, if any) or interest on any Securities of that series,
deposit with the 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 of this action or failure so to act.



     (c) Notwithstanding anything in this Section to the contrary,




	 	(1)	 	the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.05, and
	 
	 	(2)	 	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 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 terms and conditions 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.





Section 4.04 Appointment to Fill Vacancy in Office of Trustee.




     The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.11, a Trustee, so that there shall at all times be a
Trustee hereunder.



Section 4.05 Compliance with Consolidation Provisions.




     The Company will not, while any of the Securities remain Outstanding, consolidate with or
merge into any other Person, in either case where the Company is not the survivor of such
transaction, or sell, convey, transfer or otherwise dispose of its property as an entirety or
substantially as an entirety to any other Person unless the provisions of Article X hereof are
complied with.



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Section 4.06 Statement by Officers as to Default.




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



ARTICLE V

SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE

TRUSTEE




Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.




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




	 	(1)	 	not more than 15 days after each regular record date (as defined in Section
2.03) 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 such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and
	 
	 	(2)	 	at such other times as the Trustee may request in writing within 30 days after
the receipt by the Company of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list is furnished;




provided, however, that, in either case, no such list need be furnished for any series for which
the Trustee shall be the Security Registrar.




Section 5.02 Preservation Of Information; Communications With Securityholders.




     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities contained in the most recent
list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if acting in such
capacity).



     (b) The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.



     (c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall satisfy



22









 







its obligations under Section 312(b) of the Trust Indenture Act in accordance with the
provisions of Section 312(b) of the Trust Indenture Act.



Section 5.03 Reports by the Company.




     The Company covenants and agrees to provide (which delivery may be via electronic mail) to the
Trustee, within 15 days after the Company files 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) that the
Company files with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
provided, however, the Company shall not be required to deliver to the Trustee any materials for
which the Company has sought and received confidential treatment by the Commission; and provided
further, so long as such filings by the Company are available on the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), such filings shall be deemed to have been filed
with the Trustee for purposes of this Section 5.03 without any further action required by the
Company, provided, however, that the Trustee shall have no obligation whatsoever to determine if
such filing has been so made. The Company will also comply with the other provisions of Section
314(a) of the Trust Indenture Act.



Section 5.04 Reports by the Trustee.




     (a) On or before [ ] in each year in which any of the Securities are Outstanding, the Trustee
shall transmit by mail, first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report dated as of the preceding [ ], if and
to the extent required under Section 313(a) of the Trust Indenture Act.



     (b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.



     (c) A copy of each such report shall, at the time of such transmission to Securityholders, be
filed by the Trustee with the Company, with each stock exchange upon which any Securities are
listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee when
any Securities become listed on any stock exchange.



ARTICLE VI

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF

DEFAULT




Section 6.01 Events of Default.




     (a) Whenever used herein with respect to Securities of a particular series, “Event of Default”
means any one or more of the following events that has occurred and is continuing (whatever the
reason for such Event of Default and whether it shall be occasioned by the



23









 




subordination provisions of Article XIV or other subordination provisions applicable to a
series of Securities or be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):





	 	(1)	 	the Company defaults in the payment of any installment of interest upon any of
the Securities of that series, as and when the same shall become due and payable, and
continuance of such default for a period of 90 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance with the terms of
any indenture supplemental hereto shall not constitute a default in the payment of
interest for this purpose;
	 
	 	(2)	 	the Company defaults in the payment of the principal of (or premium, if any,
on) any of the Securities of that series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or in any
payment required by any sinking or analogous fund established with respect to that
series; provided, however, that a valid extension of the maturity of such Securities in
accordance with the terms of any indenture supplemental hereto shall not constitute a
default in the payment of principal or premium, if any;
	 
	 	(3)	 	the Company fails to observe or perform any other of its covenants or
agreements with respect to that series contained in this Indenture or otherwise
established with respect to that series of Securities pursuant to Section 2.01 hereof
(other than a covenant or agreement that has been expressly included in this Indenture
solely for the benefit of one or more series of Securities other than such series) for
a period of 90 days after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Securities of that series at the time Outstanding;
	 
	 	(4)	 	the Company pursuant to or within the meaning of any Bankruptcy Law






	 	(i)	 	commences a voluntary case,
	 
	 	(ii)	 	consents to the entry of an order for relief against it in an
involuntary case,
	 
	 	(iii)	 	consents to the appointment of a Custodian of it or for all or
substantially all of its property or
	 
	 	(iv)	 	makes a general assignment for the benefit of its creditors; or






	 	(5)	 	a court of competent jurisdiction enters an order under any Bankruptcy Law that






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




24









 






	 	(ii)	 	appoints a Custodian of the Company or for all or substantially
all of its property, or
	 
	 	(iii)	 	orders the liquidation of the Company, and the order remains
unstayed and in effect for 90 days.





     (b) In each and every such case, unless the principal of all the Securities of that series
shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such Securityholders), may declare
the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of
that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable.



     (c) At any time after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its consequences if:




	 	(1)	 	the Company has paid or deposited with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that series that shall
have become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit) and the amount
payable to the Trustee under Section 7.07, and
	 
	 	(2)	 	any and all Events of Default under the Indenture with respect to such series,
other than the nonpayment of principal on Securities of that series that shall not have
become due by their terms, shall have been remedied or waived as provided in Section
6.06. No such rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.





     (d) In case the Trustee shall have proceeded to enforce any right with respect to Securities
of that series under this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such
proceedings, the Company, and the Trustee shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall
continue as though no such proceedings had been taken.



Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.



25









 






	 	(a)	 	The Company covenants that
	 
	 	(1)	 	in case it shall default in the payment of any installment of interest on any
of the Securities of a series, as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or
	 
	 	(2)	 	in case it shall default in the payment of the principal of (or premium, if
any, on) any of the Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or upon redemption or upon
declaration, pursuant to any sinking or analogous fund established with respect to that
series or otherwise,




then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the
holders of the Securities of that series, the whole amount that then shall have been become due and
payable on all such Securities for principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law) upon overdue installments of interest
at the rate per annum expressed in the Securities of that series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.07.




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



     (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under the Indenture at the date
of institution of such proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.07; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.07.



26









 





     (d) All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Securities of that series, may be enforced by the Trustee without
the possession of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts due under Section 7.07, be for the ratable
benefit of the holders of the Securities of such series. In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law. Nothing contained herein shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding.



Section 6.03 Application of Moneys Collected.




     Any moneys collected by the Trustee pursuant to this Article with respect to a particular
series of Securities shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:



     FIRST: To the payment of costs and expenses of collection and of all amounts payable to the
Trustee under Section 7.07;



     SECOND: To the payment of all Senior Indebtedness of the Company if and to the extent required
by Article XIV or other subordination provisions applicable with respect to such series;



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



     FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully
entitled thereto.



Section 6.04 Limitation on Suits.




     No holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law upon



27









 







or under or with respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless




	 	(1)	 	such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided;
	 
	 	(2)	 	the holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as trustee
hereunder;
	 
	 	(3)	 	such holder or holders shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be incurred
therein or thereby; and
	 
	 	(4)	 	the Trustee for 90 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding and
	 
	 	(5)	 	during such 90 day period, the holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the
request. Notwithstanding anything contained herein to the contrary, the right of any
holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Security of such series with every other
such taker and holder and the Trustee, that no one or more holders of Securities of
such series shall have any right in any manner whatsoever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority over
or preference to any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.





Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.




     (a) Except as otherwise provided in Section 2.07, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the performance



28









 







or observance of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.



     (b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Securityholders.



Section 6.06 Control by Securityholders.




     The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.01, 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 such series; provided,
however, that such direction shall not be in conflict with any rule of law or with this Indenture
or be unduly prejudicial to the rights of holders of Securities of any other series at the time
Outstanding determined in accordance with Section 8.01. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.01, may on behalf of the holders of all of the Securities
of such series waive any past default in the performance of any of the covenants contained herein
or established pursuant to Section 2.01 with respect to such series and its consequences, except a
default in the payment of the principal of (or premium, if any) or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities
otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)) or 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 affected. Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities
of such series shall be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.



Section 6.07 Undertaking to Pay Costs.




     All parties to this Indenture agree, and each holder of any Securities by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion



29









 







assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more
than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the respective due dates
expressed in such Security or established pursuant to this Indenture.



ARTICLE VII

CONCERNING THE TRUSTEE




Section 7.01 Certain Duties and Responsibilities of Trustee.




     (a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing of all Events of Default with respect to the Securities of that
series that may have occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In case an Event of
Default with respect to the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that series such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs.



     (b) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:




	 	(1)	 	prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing or waiving of all such Events of Default with respect
to that series that may have occurred: the duties and obligations of the Trustee shall
with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the
Securities of such series except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and in the absence of bad faith
on the part of the Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirement of this Indenture;




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	 	(2)	 	the Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved
that the Trustee, was negligent in ascertaining the pertinent facts;
	 
	 	(3)	 	the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the holders of not
less than a majority in principal amount of the Securities of any series at the time
Outstanding relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Securities of that series; and
	 
	 	(4)	 	None of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.





Section 7.02 Notice of Defaults.




     If a Default occurs hereunder with respect to Securities of any series and is known to a
Responsible Officer of the Trustee, the Trustee shall give the holders of Securities of such series
notice of such Default as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any Default of the character specified in clause (3) of Section 6.01(a) with
respect to Securities of such series, no such notice to holders shall be given until at least 30
days after the occurrence thereof.



Section 7.03 Certain Rights of Trustee.




     Except as otherwise provided in Section 7.01:



     (a) The Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security 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, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company, by
the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein);



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



     (d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a series of the Securities (that has not
been cured or waived) to exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs;



     (e) The Trustee shall not be liable for any action taken or omitted to be taken 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;



     (f) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every such examination shall be paid by
the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and



     (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 attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.



Section 7.04 Trustee Not Responsible for Recitals or Issuance or Securities.




     (a) The recitals contained herein and in the Securities shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same.



     (b) The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Securities.



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     (c) The Trustee shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds of such Securities, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this Indenture or established pursuant
to Section 2.01, or for the use or application of any moneys received by any paying agent other
than the Trustee.



Section 7.05 May Hold Securities.




     The Trustee or any paying agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.



Section 7.06 Moneys Held in Trust.




     Subject to the provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any moneys received by it hereunder except such as it may
agree with the Company to pay thereon.



Section 7.07 Compensation and Reimbursement.




     (a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), as the Company, and the Trustee may from time
to time agree in writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.



     (b) The obligations of the Company under this Section to compensate and indemnify the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities.



     (c) The obligations of the Company under this Section shall not be subordinated to the payment
of Senior Indebtedness.



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Section 7.08 Reliance on Officers’ Certificate.




     Except as otherwise provided in Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.



Section 7.09 Disqualification; Conflicting Interests.




     If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act, subject to the penultimate paragraph
thereof.



Section 7.10 Corporate Trustee Required; Eligibility.




     There shall at all times be a Trustee with respect to the Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus of at least 100
million U.S. dollars ($100,000,000), and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as Trustee. In case at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified in Section 7.11.



Section 7.11 Resignation and Removal; Appointment of Successor.




     (a) The Trustee or any successor hereafter appointed, may at any time resign with respect to
the Securities of one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee with respect to
Securities of such series by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning



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Trustee and one copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such series, or any Securityholder
of that series who has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.




     (b) In case at any time any one of the following shall occur:




	 	(1)	 	the Trustee shall fail to comply with the provisions of Section 7.09 after
written request therefor by the Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months; or
	 
	 	(2)	 	the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.10 and shall fail to resign after written request therefor by the Company or
by any such Securityholder; or
	 
	 	(3)	 	the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented to, 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, the
Company may remove the Trustee with respect to all Securities and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or, unless, in the case of a failure to comply
with Section 7.09, the Trustee’s duty to resign is stayed as provided in the
penultimate paragraph of Section 310(b) of the Trust Indenture Act, any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months
may, on behalf of that holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.





     (c) The holders of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding may at any time remove the Trustee with respect to such series by so notifying
the Trustee and the Company and may appoint a successor Trustee for such series with the consent of
the Company.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee with
respect to the Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as provided in Section
7.12.



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     (e) Any successor trustee appointed pursuant to this Section may be appointed with respect to
the Securities of one or more series or all of such series, and at any time there shall be only one
Trustee with respect to the Securities of any particular series.



Section 7.12 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)	 	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, 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 that no Trustee
shall be responsible for any act or failure to act on the part of any other Trustee
hereunder; 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, such retiring Trustee shall with respect to the Securities of that or
those series to which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers




36









 






	 	 	 	or for the performance of the duties and obligations vested in the Trustee under
this Indenture, 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, to the extent contemplated by such supplemental
indenture, the 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.



     (e) Upon acceptance of appointment by a successor trustee as provided in this Section, the
Company shall transmit notice of the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.



Section 7.13 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.09 and eligible under the provisions of Section 7.10,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. 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 7.14 Preferential Collection of Claims Against the Company.




     The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.




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ARTICLE VIII

CONCERNING THE SECURITYHOLDERS




Section 8.01 Evidence of Action by Securityholders.




     Whenever in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular series may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders
of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing. If the Company shall solicit from
the Securityholders of any series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an Officers’ Certificate,
fix in advance a record date for such series for the determination of Securityholders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action may be given before or
after the record date, but only the Securityholders of record at the close of business on the
record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such authorization, agreement
or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the
record date.



Section 8.02 Proof of Execution by Securityholders.




     Subject to the provisions of Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:




	 	(a)	 	The fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee.
	 
	 	(b)	 	The ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.
	 
	 	(c)	 	The Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.





Section 8.03 Who May be Deemed Owners.




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     Prior to the due presentment for registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of (and premium, if any) and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.



Section 8.04 Certain Securities Owned by Company Disregarded.




     In determining whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction, consent of waiver under this Indenture, the
Securities of that series that are owned by the Company or any other obligor on the Securities of
that series or by any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.



Section 8.05 Actions Binding on Future Securityholders.




     At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the holder of
any Security shall be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto
is made upon such Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.



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ARTICLE IX

SUPPLEMENTAL INDENTURES




Section 9.01 Supplemental Indentures Without the Consent of Securityholders.




     In addition to any supplemental indenture otherwise authorized by this Indenture, the Company
and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the following purposes:




	 	(1)	 	to cure any ambiguity, defect, or inconsistency herein or in the Securities of
any series;
	 
	 	(2)	 	to comply with Article X;
	 
	 	(3)	 	to provide for uncertificated Securities in addition to or in place of
certificated Securities;
	 
	 	(4)	 	to add to the covenants, restrictions, conditions or provisions relating to the
Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions, conditions or
provisions are expressly being included solely for the benefit of such series), to make
the occurrence, or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the Company;
	 
	 	(5)	 	to add to, delete from, or revise the conditions, limitations, and restrictions
on the authorized amount, terms, or purposes of issue, authentication, and delivery of
Securities (prior to the issuance thereof), as herein set forth;
	 
	 	(6)	 	to make any change that does not adversely affect the rights of any
Securityholder in any material respect;
	 
	 	(7)	 	to provide for the issuance of and establish the form and terms and conditions
of the Securities of any series as provided in Section 2.01, to establish the form of
any certifications required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of any series of
Securities;
	 
	 	(8)	 	to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to




40









 












provide for or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 7.12; or




	 	(9)	 	to comply with any requirements of the Commission or any successor in
connection with the qualification of this Indenture under the Trust Indenture Act.





     The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.



     Any supplemental indenture authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.



Section 9.02 Supplemental Indentures With Consent of Securityholders.




     With the consent (evidenced as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each series affected by such
supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a
Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby:



     (1) extend the maturity of the principal of, or any installment of principal of or interest
on, any Security, or reduce the principal amount thereof, or reduce the rate of interest or extend
the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.01 or change the coin or currency in which any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of any such payment
on or after the maturity thereof (or, in the case of redemption, on or after the redemption date),
or



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



41









 





     (3) modify any of the provisions of this Section or Section 6.06 relating to waivers of
default, except to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be deemed to require the
consent of any holder with respect to changes in the references to “the Trustee” and concomitant
changes in this Section, or the deletion of this proviso, in accordance with the requirements of
Sections 7.12 and 9.01(8), or



     (4) modify the provisions of this Indenture with respect to the subordination of such Security
in a manner adverse to the holder thereof.



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the holders of Securities of any other series. It shall not be necessary for the
consent of the Securityholders of any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.



Section 9.03 Effect of Supplemental Indentures.




     Upon the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders
of Securities of the series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.



Section 9.04 Securities Affected by Supplemental Indentures.




     Securities of any series, affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities of that series so
modified as to conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the Securities of that series
then Outstanding.



Section 9.05 Execution of Supplemental Indentures.




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     Upon the request of the Company, accompanied by its Board Resolutions authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officers’
Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Officers’ Certificate or Opinion of Counsel need
not be provided in connection with the execution of a supplemental indenture that establishes the
terms of a series of Securities pursuant to Section 2.01 hereof.



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to
the Securityholders of all series affected thereby as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.



ARTICLE X

SUCCESSOR ENTITY




Section 10.01 Company May Consolidate, Etc.




     Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in
an Officer’s Certificate, or established in one or more indentures supplemental to this Indenture,
nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or
merger of the Company with or into any other Person (whether or not affiliated with the Company) or
successive consolidations or mergers in which the Company or its successor or successors shall be a
party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company or its successor or successors as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is
not the survivor of such transaction), sale, conveyance, transfer or other disposition, (a) the due
and punctual payment of the principal of (and premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each series, according to their tenor and
the due and punctual performance and observance of all the covenants and conditions of this
Indenture or established with respect to each series of Securities pursuant to Section 2.01 to be
kept or performed by the Company shall be expressly assumed, by supplemental indenture (which
shall conform to the provisions of the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the



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entity formed by such consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property and (b) in the event that the Securities of any
series then Outstanding are convertible into or exchangeable for shares of common stock or other
securities of the Company, such entity shall, by such supplemental indenture, make provision so
that the Securityholders of Securities of that series shall thereafter be entitled to receive upon
conversion or exchange of such Securities the number of securities or property to which a holder of
the number of shares of common stock or other securities of the Company deliverable upon conversion
or exchange of those Securities would have been entitled had such conversion or exchange occurred
immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition.




Section 10.02 Successor Entity Substituted.




     (a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor entity by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section
10.01 on all of the Securities of all series Outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture or established with respect to each series of
the Securities pursuant to Section 2.01 to be performed by the Company, such successor entity shall
succeed to and be substituted for the Company with the same effect as if it had been named as the
Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.



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



     (c) Nothing contained in this Article shall require any action by the Company in the case of a
consolidation or merger of any Person into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the Company).



Section 10.03 Evidence of Consolidation, Etc. to Trustee.




     The Trustee, subject to the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this Article.



ARTICLE XI

SATISFACTION AND DISCHARGE; DEFEASANCE




Section 11.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect with respect to a
series of Securities (except as to any surviving rights of registration of transfer or exchange of



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such series of Securities herein expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such series, when:





	 	(1)	 	either (A) all Securities of that series theretofore authenticated and
delivered (other than (i) any Securities that shall have been destroyed, lost or stolen
and that shall have been replaced or paid as provided in Section 2.07 and (ii)
Securities for whose payment money or noncallable Governmental Obligations have
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
11.05) have been delivered to the Trustee for cancellation; or (B) all Securities of
such series not theretofore delivered to the Trustee for cancellation (i) have become
due and payable, or (ii) will by their terms become due and payable within one year or
(iii) are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee as trust funds in trust for the purpose (x)
moneys in an amount, or (y) noncallable Governmental Obligations the scheduled
principal of and interest on which in accordance with their terms will provide, not
later than the due date of any payment, money in an amount, or (z) a combination
thereof, sufficient, in the case of (y) or (z), in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, at maturity or upon redemption,
all Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to become
due to such date of maturity or date fixed for redemption, as the case may be;
	 
	 	(2)	 	the Company has paid or caused to be paid all other sums payable hereunder with
respect to such series by the Company; and
	 
	 	(3)	 	the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all the conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture with respect to such
series of Securities have been complied with.





     Notwithstanding the satisfaction and discharge of this Indenture with respect to a series of
Securities, the obligations of the Trustee under Section 7.07 and, if money shall have been
deposited with the Trustee pursuant to subclause (y) of clause (1) of this Section, the obligations
of the Trustee under Sections 11.03 and 11.05 shall survive.



Section 11.02 Defeasance.




     The Company may, at its option and at any time (including notwithstanding the exercise by the
Company of a Covenant Defeasance (as defined herein)), elect to have its obligations discharged
with respect to a series of the Securities (“Legal Defeasance”). Such Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire



45









 







indebtedness represented by such series of Securities, except for (a) the rights of holders to
receive payments in respect of the principal of (and premium, if any) and interest on the
Securities when such payments are due solely from the trust fund described in this Section, (b) the
Company’s obligations with respect to such series of Securities concerning issuing temporary
Securities, registration of transfer or exchange of such series of Securities, mutilated,
destroyed, lost or stolen Securities of such series and the maintenance of an office or agency for
payments, (c) the rights, powers, trust, duties and immunities of the Trustee and the Company’s
obligations in connection therewith and (d) the Legal Defeasance provisions of this Indenture. In
addition, the Company may, at its option and at any time, elect to have the obligations of the
Company released with respect to covenants provided with respect to such series of Securities under
Section 2.01(15), 9.01(4) and 9.01(7) of this Indenture (“Covenant Defeasance”) and thereafter any
omission to comply with such obligations shall not constitute a Default or Event of Default with
respect to such series of Securities. In the event of Covenant Defeasance, those events described
under Section 6.01(a) with respect to the foregoing covenants will no longer constitute an Event of
Default with respect to such series of Securities.



     In order to exercise either Legal Defeasance or Covenant Defeasance:




	 	(1)	 	the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the holders of such series, (A) moneys in an amount, or (B) noncallable
Governmental Obligations the scheduled principal of and interest on which in accordance
with their terms will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the case of (B) or (C), in the
opinion of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and discharge, at
maturity or upon redemption, the principal of (and premium, if any) and interest on
such series of Securities on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
	 
	 	(2)	 	in the case of Legal Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel confirming 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 Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the holders of such series of Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred;
	 
	 	(3)	 	in the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel confirming that the holders of such series of Securities
will not recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;




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	 	(4)	 	no Default or Event of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or insofar as Events
of Default under clauses (4) and (5) of Section 6.01(a) are concerned, at any time in
the period ending on the 91st day after the date of deposit;
	 
	 	(5)	 	the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating
to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been
complied with; and
	 
	 	(6)	 	if such series of Securities are to be redeemed prior to final 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.





Section 11.03 Deposited Moneys to be Held in Trust.




     All moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01
or 11.02 shall be held in trust and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee. Funds held pursuant to this Section
with respect to any series of Securities shall not be subject to the claims of the holders of
Senior Indebtedness with respect to such series, provided, that at the time of the deposit of such
funds with the Trustee under this Article, no event had occurred that would, under the
subordination provisions related to such series, require that any payment to be made to the holders
of such Securities be paid or paid over to the holders of such Senior Indebtedness.



Section 11.04 Payment of Moneys Held by Paying Agents.




     In connection with the satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys or Governmental Obligations.



Section 11.05 Repayment to Company.




     Any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then
held by the Company, in trust for payment of principal of (or premium, if any) or interest on the
Securities of a particular series that are not applied but remain unclaimed by the holders of such
Securities for at least two years after the date upon which the principal of (and premium, if any)
or interest on such Securities shall have respectively become due and payable, or such other
shorter period set forth in applicable escheat or abandoned property law, shall be repaid to the
Company on May 31 of each year or (if then held by the Company) shall be



47









 




discharged from such trust; and thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations, and the holder of
any of the Securities entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof as an unsecured general creditor, unless
an abandoned property law designates another Person.




Section 11.06 Reinstatement.




     If the Trustee (or other qualifying trustee or any paying agent appointed as provided herein)
is unable to apply any moneys or Government Obligations in accordance with this Article 11 by
reason of any legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations
under this Indenture and the Securities of such series shall be revived and reinstated as though no
such deposit had occurred, until such time as the Trustee (or other qualifying trustee or paying
agent) is permitted to apply all such moneys and Government Obligations in accordance with this
Article 11; provided, however , that if the Company makes any payment of the principal of or
premium, if any, or interest if any, on the Securities of such series following the reinstatement
of its obligations as aforesaid, the Company shall be subrogated to the rights of the
Securityholders to receive such payment from the funds held by the Trustee (or other qualifying
trustee or paying agent).



ARTICLE XII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS




Section 12.01 No Recourse.




     No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as such, of the Company or
of any predecessor or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such incorporator, stockholder,
officer or director as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and



48









 




released as a condition of, and as a consideration for, the execution of this Indenture and the
issuance of such Securities.




ARTICLE XIII

MISCELLANEOUS PROVISIONS




Section 13.01 Effect on Successors and Assigns.




     All the covenants, stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind its successors and assigns, whether so expressed or not.



Section 13.02 Actions by Successor.




     Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any corporation that
shall at the time be the lawful successor of the Company.



Section 13.03 Surrender of Company Powers.




     The Company by instrument in writing executed by authority of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any successor
corporation.



Section 13.04 Notices.




     Except as otherwise expressly provided herein any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the holders of
Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the
Company with the Trustee), as follows: [                    ]. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.



Section 13.05 Governing Law.




     This Indenture and each Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State.



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Section 13.06 Treatment of Securities as Debt.




     It is intended that the Securities will be treated as indebtedness and not as equity for
federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.



Section 13.07 Compliance Certificates and Opinions.




     (a) Upon any application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company, shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



     (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this Indenture shall include




	 	(1)	 	a statement that the Person making such certificate or opinion has read such
covenant or condition;
	 
	 	(2)	 	a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
	 
	 	(3)	 	a statement that, in the opinion of such Person, 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
	 
	 	(4)	 	a statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.





Section 13.08 Payments on Business Days.




     Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth
in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.



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Section 13.09 Conflict with Trust Indenture Act.




     If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties 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 13.10 Counterparts.




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



51









 





Section 13.11 Separability.




     In case any one or more of the provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein or therein.



ARTICLE XIV

SUBORDINATION OF SECURITIES




Section 14.01 Securities Subordinate to Senior Indebtedness.




     The Company covenants and agrees that the indebtedness evidenced by each series of Securities
is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided in
this Article XIV or as further provided in an indenture supplemental hereto or a Board Resolution
with respect to a series of Securities adopted pursuant to Section 2.01 hereof, and each holder of
Securities of each series, by his acceptance thereof, likewise covenants and agrees to such
subordination and shall be bound by the provisions thereof. Senior Indebtedness shall continue to
be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective
of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or
renewal of the Senior Indebtedness.



     In the event that the Company shall default in the payment of any principal of (or premium, if
any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written
notice of such default to the Company by the holders of Senior Indebtedness or any trustee or
representative thereof, unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made on account of the principal of or interest on any of
the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities.



     In the event of



     (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to the Company, its creditors or its property,



     (b) any proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,



     (c) any assignment by the Company for the benefit of creditors, or



     (d) any other marshalling of the assets of the Company,



52









 





     all Senior Indebtedness shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any holder of any of the Securities
on account thereof. Any payment or distribution, whether in cash, securities or other property
(other than securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to the extent provided
in the subordination provisions applicable to a series of the Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment), which would otherwise (but for the applicable
subordination provisions) be payable or deliverable in respect of the Securities of any series
shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior Indebtedness shall have been paid in
full.



     In the event that, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the subordination provisions
applicable to a series of the Securities, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by the Trustee or any holder in contravention of any of the
terms hereof, such payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness
at the time outstanding in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full. In the event of the failure of the Trustee or any holder
to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness
is hereby irrevocably authorized to endorse or assign the same.



     No present or future holder of any Senior Indebtedness shall be prejudiced in the right to
enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act
on the part of the Company. Nothing contained herein shall impair, as between the Company and the
holders of Securities of each series, the obligation of the Company to pay to such holders the
principal of (and premium, if any) and interest on such Securities or prevent the Trustee or the
holder from exercising all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon an Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable
to the holders.



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     Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof
shall have received cash, securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of
Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness
to receive any further payments or distributions applicable to the Senior Indebtedness until the
indebtedness evidenced by the Securities of such series shall have been paid in full, and such
payments or distributions received by such holders, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the holders of Senior
Indebtedness, on the one hand, and such holders, on the other hand, be deemed to be a payment by
the Company on account of Senior Indebtedness, and not on account of the Securities of such series.



     The Trustee and holders will take such action (including, without limitation, the delivery of
this Indenture, an indenture supplemental hereto or Board Resolution containing subordination
provisions applicable to a series of the Securities to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect thereto) as may, in the
opinion of counsel designated by the holders of a majority in principal amount of the Senior
Indebtedness at the time outstanding, be necessary or appropriate to assure the effectiveness of
the subordination of the Securities.



Section 14.02 Trustee and Holders May Rely on Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Indebtedness.




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     Upon any payment or distribution of assets of the Company referred to in this Article XIV or
other subordination provisions applicable to a series of the Securities, the Trustee and the
holders shall be entitled to rely on an order or decree made by any court of competent jurisdiction
in which dissolution or winding up or liquidation or reorganization or arrangement pleadings are
pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution, delivered to the Trustee or to the
holders, for the purpose of ascertaining the Persons entitled to participate in such distribution,
the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XIV or other subordination provisions applicable to a series of the
Securities. In the absence of any such bankruptcy trustee, receiver, assignee or other Person, the
Trustee shall be entitled to rely upon a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) as evidence
that such Person is a holder of Senior Indebtedness (or is such a trustee or representative). 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
payments or distributions pursuant to this Article XIV or other subordination provisions applicable
to a series of the Securities, 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,
as to the extent to which such Person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such Person, and if such evidence is not
furnished, the Trustee may refuse to offer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The Trustee, however, shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness.



Section 14.03 Payment Permitted if No Default.




     Nothing contained in this Article XIV or other subordination provisions applicable to a series
of the Securities shall prevent (a) the Company, at any time except during the pendency of any
dissolution, winding up, liquidation or reorganization proceedings referred to in, or under the
conditions described in, Section 14.01 (or comparable conditions contained in other subordination
provisions applicable to a series of the Securities), from making payments at any time of the
principal of or interest on the Securities or (b) the application by the Trustee or any paying
agent of any monies deposited with it hereunder to payments of the principal of or interest on a
series of the Securities if, at the time of such deposit, the Trustee or such paying agent, as the
case may be, did not have the written notice provided for in Section 14.04 (or in a comparable
notice provision contained in other subordination provisions applicable to a series of the
Securities) of any event prohibiting the making of such deposit, or if, at the time of such deposit
(whether or not in trust) by the Company with the Trustee or any paying agent (other than the
Company) such payment would not have been prohibited by the provisions of the subordination
provisions applicable to such series of Securities, and the Trustee or any paying agent shall not
be affected by any notice to the contrary received by it on or after such date.



Section 14.04 Trustee Not Charged with Knowledge of Prohibition.




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     Nothing contained in this Article XIV or other subordination provisions applicable to a series
of the Securities to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of any payment of
monies hereunder to or by the Trustee and shall be entitled conclusively to assume that no such
facts exist and that no event specified in Section 14.01 (or comparable event contained in other
subordination provisions applicable to a series of the Securities) has happened, until the Trustee
shall have received an Officers’ Certificate to that effect or notice in writing to that effect
signed by or on behalf of the holder or holders, or their representatives, of Senior Indebtedness
who shall have been certified by the Company or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or holders or representatives or from any trustee
under any indenture pursuant to which such Senior Indebtedness shall be outstanding; provided that,
if prior to the third Business Day preceding the date upon which by the terms hereof any monies
become payable hereunder (including, without limitation, the payment of either the principal of or
interest on any Security), or in the event of the execution of an instrument pursuant to Sections
11.01 or 11.02, then if prior to the second Business Day preceding the date of such execution, the
Trustee or any paying agent shall not have received with respect to such monies the Officers’
Certificate or notice provided for in this Section 14.04, then, anything herein contained to the
contrary notwithstanding, the Trustee or such paying agent shall have full power and authority to
receive such monies and apply the same to the purpose for which they were received by it on or
after such date. The Company shall give prompt written notice to the Trustee and to the paying
agent of any facts known to the Company which would prohibit the payment of monies to or by the
Trustee or any paying agent.



Section 14.05 Trustee to Effectuate Subordination.




     Each holder of Securities by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the subordination as
between such holder and holders of Senior Indebtedness, as provided in this Article (or other
subordination provisions applicable to a series of the Securities), and appoints the Trustee its
attorney-in-fact for and all such purposes.



Section 14.06 Rights of Trustee as Holder of Senior Indebtedness.




     The Trustee shall be entitled to all the rights set forth in this Article (or other
subordination provisions applicable to a series of the Securities) with respect to any Senior
Indebtedness which may at the time be held by it, to the same extent as any other holder of Senior
Indebtedness, provided that nothing in this Indenture shall deprive the Trustee of any of the
rights as such holder and provided further that nothing in this Article or other subordination
provisions applicable to a series of the Securities shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.



Section 14.07 Provisions Applicable to Paying Agents.



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     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 (or other
subordination provisions applicable to a series of the Securities) shall in such case (unless the
context shall otherwise require) be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if the paying agent were named in this
Article or other applicable subordination provisions in addition to or in place of the Trustee;
provided, however, that Section 14.04 shall not apply to the Company or any Affiliate of the
Company if the Company or such Affiliate acts as paying agent.



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



	 	 	 	 	 
	 	TELECOMMUNICATION SYSTEMS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[                    ], as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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