EXHIBIT
4.3


 


MONTPELIER
RE HOLDINGS LTD.


 


TO


 


THE BANK
OF NEW YORK MELLON,


 


Trustee


 


SUBORDINATED
INDENTURE


 


Dated as
of [ ], 200 


 


SUBORDINATED
DEBT SECURITIES


 

















 


Table of
Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  Section 1.1

  	
  Certain Terms Defined

  	
  1

  
	
   

  	
   

  
	
  ARTICLE 2 SECURITY FORMS

  	
  11

  
	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  11

  
	
  Section 2.2

  	
  Form of Trustee’s Certificate of Authentication

  	
  11

  
	
  Section 2.3

  	
  Form of Trustee’s Certificate of Authentication
  by an Authenticating Agent

  	
  12

  
	
  Section 2.4

  	
  Securities Issuable in the Form of Global
  Securities

  	
  12

  
	
   

  	
   

  
	
  ARTICLE 3 THE SECURITIES

  	
  14

  
	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable
  in Series

  	
  14

  
	
  Section 3.2

  	
  Form and Denominations

  	
  17

  
	
  Section 3.3

  	
  Authentication, Dating and Delivery of Securities

  	
  17

  
	
  Section 3.4

  	
  Execution of Securities

  	
  19

  
	
  Section 3.5

  	
  Certificate of Authentication

  	
  20

  
	
  Section 3.6

  	
  Registration, Registration of Transfer and Exchange

  	
  20

  
	
  Section 3.7

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  21

  
	
  Section 3.8

  	
  Payment of Interest and Certain Additional Amounts;
  Interest Rights and Certain Additional Amounts Preserved

  	
  22

  
	
  Section 3.9

  	
  Cancellation of Securities; Destruction Thereof

  	
  23

  
	
  Section 3.10

  	
  Temporary Securities

  	
  24

  
	
  Section 3.11

  	
  Computation of Interest

  	
  24

  
	
  Section 3.12

  	
  CUSIP Numbers

  	
  24

  
	
   

  	
   

  
	
  ARTICLE 4 COVENANTS OF THE
  COMPANY

  	
  25

  
	
   

  	
   

  
	
  Section 4.1

  	
  Payment of Securities

  	
  25

  
	
  Section 4.2

  	
  Offices or Agency

  	
  25

  
	
  Section 4.3

  	
  Money for Securities Payments to Be Held in Trust

  	
  26

  
	
  Section 4.4

  	
  Additional Amounts

  	
  27

  
	
  Section 4.5

  	
  Redemption for Tax Purposes

  	
  29

  
	
  Section 4.6

  	
  Corporate Existence

  	
  29

  
	
  Section 4.7

  	
  Waiver of Certain Covenants

  	
  30

  
	
  Section 4.8

  	
  Certificates to Trustee

  	
  30

  
	
  Section 4.9

  	
  Calculation of Original Issue Discount

  	
  30

  



 


i

















 


Table of
Contents

(continued)


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 SECURITYHOLDER LISTS AND REPORTS BY THE
  COMPANY AND THE TRUSTEE

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Company to Furnish Trustee
  Information as to Names and Addresses of Securityholders

  	
  31

  
	
  Section 5.2

  	
  Preservation and Disclosure
  of Securityholder Lists

  	
  31

  
	
  Section 5.3

  	
  Reports by the Company

  	
  32

  
	
  Section 5.4

  	
  Reports by the Trustee

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 REMEDIES OF THE
  TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Event of Default Defined;
  Acceleration of Maturity; Waiver of Default

  	
  33

  
	
  Section 6.2

  	
  Collection of Indebtedness
  by Trustee; Trustee May Prove Debt

  	
  36

  
	
  Section 6.3

  	
  Application of Proceeds

  	
  38

  
	
  Section 6.4

  	
  Suits for Enforcement

  	
  39

  
	
  Section 6.5

  	
  Restoration of Rights on
  Abandonment of Proceedings

  	
  39

  
	
  Section 6.6

  	
  Limitations on Suits by
  Securityholders

  	
  39

  
	
  Section 6.7

  	
  Unconditional Right of
  Securityholders to Institute Certain Suits

  	
  40

  
	
  Section 6.8

  	
  Powers and Remedies
  Cumulative; Delay or Omission Not Waiver of Default

  	
  40

  
	
  Section 6.9

  	
  Control by Holders of
  Securities

  	
  41

  
	
  Section 6.10

  	
  Waiver of Past Defaults

  	
  41

  
	
  Section 6.11

  	
  Trustee to Give Notice of
  Default, But May Withhold in Certain Circumstances

  	
  42

  
	
  Section 6.12

  	
  Right of Court to Require
  Filing of Undertaking to Pay Costs

  	
  42

  
	
  Section 6.13

  	
  Waiver of Usury, Stay or
  Extension Laws

  	
  43

  
	
  Section 6.14

  	
  Delay or Omission Not
  Waiver

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 CONCERNING THE
  TRUSTEE

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Duties and Responsibilities
  of the Trustee; During Default; Prior to Default

  	
  43

  
	
  Section 7.2

  	
  Certain Rights of the
  Trustee

  	
  44

  
	
  Section 7.3

  	
  Trustee Not Responsible for
  Recitals, Disposition of Securities or Application of Proceeds Thereof

  	
  46

  
	
  Section 7.4

  	
  Trustee and Agents
  May Hold Securities; Collections, etc.

  	
  46

  
	
  Section 7.5

  	
  Moneys Held by Trustee

  	
  46

  



 


ii

















 


Table of
Contents

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.6

  	
  Compensation and Indemnification of Trustee and Its
  Prior Claim

  	
  46

  
	
  Section 7.7

  	
  Right of Trustee to Rely on Officer’s Certificate,
  etc.

  	
  47

  
	
  Section 7.8

  	
  Qualification of Trustee; Conflicting Interests

  	
  47

  
	
  Section 7.9

  	
  Persons Eligible for Appointment as Trustee

  	
  48

  
	
  Section 7.10

  	
  Resignation and Removal; Appointment of Successor
  Trustee

  	
  48

  
	
  Section 7.11

  	
  Acceptance of Appointment by Successor Trustee

  	
  49

  
	
  Section 7.12

  	
  Merger, Conversion, Consolidation or Succession to
  Business of Trustee

  	
  50

  
	
  Section 7.13

  	
  Preferential Collection of Claims Against the
  Company

  	
  50

  
	
  Section 7.14

  	
  Authenticating Agent

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 CONCERNING THE
  HOLDERS OF SECURITIES

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Action by Holders

  	
  55

  
	
  Section 8.2

  	
  Proof of Execution of
  Instruments by Holders of Securities

  	
  56

  
	
  Section 8.3

  	
  Holders to be Treated as
  Owners

  	
  56

  
	
  Section 8.4

  	
  Securities Owned by Company
  Deemed Not Outstanding

  	
  57

  
	
  Section 8.5

  	
  Right of Revocation of
  Action Taken

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 HOLDERS’ MEETINGS

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Purposes of Meetings

  	
  58

  
	
  Section 9.2

  	
  Call of Meetings by Trustee

  	
  58

  
	
  Section 9.3

  	
  Call of Meetings by Company
  or Holders

  	
  58

  
	
  Section 9.4

  	
  Qualifications for Voting

  	
  59

  
	
  Section 9.5

  	
  Regulations

  	
  59

  
	
  Section 9.6

  	
  Voting

  	
  60

  
	
  Section 9.7

  	
  No Delay of Rights by Reason
  of Meeting

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 SUPPLEMENTAL
  INDENTURES

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Supplemental Indentures
  Without Consent of Securityholders

  	
  60

  
	
  Section 10.2

  	
  Supplemental Indentures
  With Consent of Securityholders

  	
  62

  
	
  Section 10.3

  	
  Notice of Supplemental Indenture

  	
  64

  
	
  Section 10.4

  	
  Effect of Supplemental
  Indenture

  	
  64

  
	
  Section 10.5

  	
  Documents To Be Given to
  Trustee

  	
  64

  



 


iii

















 


Table of
Contents

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.6

  	
  Notation on Securities in Respect of Supplemental
  Indentures

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 CONSOLIDATION,
  AMALGAMATION, MERGER OR SALE

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  65

  
	
  Section 11.2

  	
  Opinion of Counsel

  	
  65

  
	
  Section 11.3

  	
  Successor Person
  Substituted

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 SATISFACTION AND
  DISCHARGE OF INDENTURE, UNCLAIMED MONEYS

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Satisfaction and Discharge
  of Securities of Any Series

  	
  66

  
	
  Section 12.2

  	
  Defeasance and Covenant
  Defeasance

  	
  68

  
	
  Section 12.3

  	
  Application of Trust Money

  	
  72

  
	
  Section 12.4

  	
  Repayment of Moneys Held by
  Paying Agent

  	
  72

  
	
  Section 12.5

  	
  Return of Unclaimed Moneys
  Held by Trustee and Paying Agent

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 SUBORDINATION OF
  SECURITIES

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Agreement to Subordinate

  	
  73

  
	
  Section 13.2

  	
  Default on Senior
  Indebtedness

  	
  73

  
	
  Section 13.3

  	
  Liquidation; Dissolution;
  Bankruptcy

  	
  74

  
	
  Section 13.4

  	
  Subrogation

  	
  75

  
	
  Section 13.5

  	
  Trustee to Effectuate
  Subordination

  	
  76

  
	
  Section 13.6

  	
  Notice by the Company

  	
  76

  
	
  Section 13.7

  	
  Rights of the Trustee;
  Holders of Senior Indebtedness

  	
  77

  
	
  Section 13.8

  	
  Subordination May Not
  Be Impaired

  	
  78

  
	
  Section 13.9

  	
  Application by Trustee of
  Assets Deposited with It

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 MISCELLANEOUS
  PROVISIONS

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  Incorporators,
  Shareholders, Officers and Directors of Company Exempt from Individual
  Liability

  	
  79

  
	
  Section 14.2

  	
  Provisions of Indenture for
  the Sole Benefit of Parties and Securityholders

  	
  79

  
	
  Section 14.3

  	
  Successors and Assigns of
  Company Bound by Indenture

  	
  80

  
	
  Section 14.4

  	
  Notices to Holders; Waiver

  	
  80

  
	
  Section 14.5

  	
  Addresses for Notices

  	
  80

  
	
  Section 14.6

  	
  Officer’s Certificates and
  Opinions of Counsel; Statements to Be Contained Therein

  	
  80

  



 


iv

















 


Table of
Contents

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 14.7

  	
  Separability Clause

  	
  82

  
	
  Section 14.8

  	
  Legal Holidays

  	
  82

  
	
  Section 14.9

  	
  Conflict of Any Provision of Indenture with Trust
  Indenture Act

  	
  82

  
	
  Section 14.10

  	
  Governing Law

  	
  82

  
	
  Section 14.11

  	
  Judgment Currency

  	
  82

  
	
  Section 14.12

  	
  No Security Interest Created

  	
  83

  
	
  Section 14.13

  	
  Submission to Jurisdiction

  	
  83

  
	
  Section 14.14

  	
  Counterparts

  	
  84

  
	
  Section 14.15

  	
  Effect of Headings

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 REDEMPTION OF
  SECURITIES

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 15.1

  	
  Applicability of Article

  	
  84

  
	
  Section 15.2

  	
  Notice of Redemption;
  Selection of Securities

  	
  84

  
	
  Section 15.3

  	
  Payment of Securities
  Called for Redemption

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16 SINKING FUNDS

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 16.1

  	
  Applicability of Article

  	
  87

  
	
  Section 16.2

  	
  Satisfaction of Mandatory
  Sinking Fund Payment with Securities

  	
  87

  
	
  Section 16.3

  	
  Redemption of Securities
  for Sinking Fund

  	
  88

  



 


v

















 


MONTPELIER
RE HOLDINGS LTD.


 


/*/ Reconciliation and tie between Trust Indenture Act
of 1939, as amended by the Trust Reform Act of 1990, and Indenture, dated as of
[ ], 200 .


 


	
  Section of the

  	
   

  	
   

  
	
  Trust Indenture Act of 1939

  	
   

  	
  Section of
  Indenture

  
	
  310(a)(1), (2) and (5)

  	
   

  	
  7.9

  
	
  310(a)(3) and (4)

  	
   

  	
  Inapplicable

  
	
  310(b)

  	
   

  	
  7.8 and 7.10(a)and(b)

  
	
  311(a)

  	
   

  	
  7.13(a) and (c)(i) and (iii)

  
	
  311(b)

  	
   

  	
  7.13(b)

  
	
  312(a)

  	
   

  	
  5.1 and 5.2(a)

  
	
  312(b)

  	
   

  	
  5.2(b)

  
	
  312(c)

  	
   

  	
  5.2(b)

  
	
  313(a)

  	
   

  	
  5.4(a)

  
	
  313(b)(1)

  	
   

  	
  Inapplicable

  
	
  313(b)(2)

  	
   

  	
  5.4(b)

  
	
  313(c)

  	
   

  	
  5.4(c)

  
	
  313(d)

  	
   

  	
  5.4(d)

  
	
  314(a)

  	
   

  	
  4.8 and 5.3

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)(1) and (2)

  	
   

  	
  14.6

  
	
  314(c)(3)

  	
   

  	
  Inapplicable

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  14.6

  
	
  315(a), (c) and (d)

  	
   

  	
  7.1

  
	
  315(b)

  	
   

  	
  6.11

  
	
  315(e)

  	
   

  	
  6.12

  
	
  316(a)(1)

  	
   

  	
  6.9

  
	
  316(a)(2)

  	
   

  	
  Inapplicable

  
	
  316(a) (last sentence)

  	
   

  	
  8.4

  
	
  316(b)

  	
   

  	
  6.7

  
	
  316(c)

  	
   

  	
  8.1

  
	
  317(a)

  	
   

  	
  6.2

  
	
  317(b)

  	
   

  	
  4.2 and 4.3

  
	
  318(a)

  	
   

  	
  14.9

  



 






/*/ This reconciliation and tie shall not, for any
purpose, be deemed to be part of the Indenture or to have any bearing upon the
interpretation of any of its terms or provisions.


 
















 


SUBORDINATED INDENTURE (herein, the “Indenture”),
dated as of [ ], 200    , between MONTPELIER RE HOLDINGS
LTD., a Bermuda company (herein, subject to ARTICLE 11, sometimes called the
“Company”), having its principal office at Montpelier House, 94 Pitts Bay Road,
Pembroke, Bermuda HM 08, and The Bank of New York, a New York banking
corporation, as Trustee (hereinafter, subject to ARTICLE 12, called the
“Trustee”), having its principal corporate trust office at 101 Barclay Street,
Fl.8W, New York, New York 10286. Attention: Corporate Trust Administration.


 


Recitals
of the Company


 


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


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration of the premises and the
purchase of the Securities by the Persons acquiring the same, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of the Securities of any series, without giving any
priority of any one Security or series over any other, except as otherwise
expressly provided herein, as follows:


 


ARTICLE 1


 


DEFINITIONS


 


Section 1.1 Certain Terms Defined.


 


The following terms (except as otherwise expressly
provided or unless the context otherwise clearly requires) for all purposes of
this Indenture, including any indenture supplemental hereto, have the
respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act or the definitions of
which in the Securities Act of 1933 are referred to in the Trust Indenture Act
or that are defined by rule of the Commission under the Trust Indenture
Act (except as herein otherwise expressly provided or unless the context
otherwise clearly requires) have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act or in said Commission rule under
the Trust Indenture Act as in force at the date on which this Indenture was
originally executed (subject to Section 10.1 and Section 10.2). 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. All references herein to “Articles” or other subdivisions
are to the corresponding Articles or other subdivisions of this Indenture. The
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.


 

















 


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


 


“Additional Provisions” has the meaning specified in Section 13.1.


 


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


 


“Authenticating Agent” means, with respect to any
series of Securities, any authenticating agent appointed by the Trustee, with
respect to that series of Securities, pursuant to Section 7.14.


 


“Authorized Newspaper” means a newspaper or financial
journal printed in the English language, customarily published at least once a
day, and customarily published for at least five days in each calendar week,
whether or not published on days that are legal holidays and of general
circulation; or, in the alternative, shall mean such form of communication as
may have come into general use for the dissemination of information of import
similar to that of the information specified to be published by the provisions
hereof. Whenever successive publications are required or authorized to be made
in Authorized Newspapers, the successive publications may be made (unless
otherwise expressly provided herein) in the same or different newspapers
meeting the foregoing requirements and in each case on any Business Day. In
case, by reason of the suspension of publication of any Authorized Newspaper,
or for any other cause, it shall be impractical without unreasonable expense to
make publication of any notice in an Authorized Newspaper as required by this
Indenture, then such method of publication or notification as shall be made
with the approval of the Trustee shall be deemed the equivalent of the required
publication of such notice in an Authorized Newspaper.


 


“Board of Directors” means either the board of
directors of the Company or any committee of such Board of Directors or Officer
duly authorized to act with respect to a particular matter on behalf of the
Board of Directors.


 


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


 


“Business Day”, when used with respect to any Place of
Payment or any other location specified in the Securities or this Indenture,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place


 


2

















 


of Payment or location are generally authorized or
obligated by law, regulation or executive order to close, except as may be
otherwise specified as contemplated by Section 3.1.


 


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


 


“Capitalized Lease Obligation” means an obligation
under a lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting principles, and the
amount of Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with such principles.


 


“Commission” means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or if at any time after the date on which this Indenture was originally
executed such Commission is not existing and performing the duties assigned to
it under the Trust Indenture Act on such date of original execution, then the
body performing such duties at such time.


 


“Common Stock” in respect of any Corporation means
Capital Stock of any class or classes (however designated) which has no
preference as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
Corporation, and which is not subject to redemption by such Corporation.


 


“Company” means (except as otherwise provided in Section 7.3)
Montpelier Re Holdings Ltd., a Bermuda company, and, subject to ARTICLE 11, its
successors and assigns.


 


“Company Order” and “Company Request” mean a written
order or request signed in the name of the Company by the president, any vice
president or the treasurer or controller and by any assistant treasurer, any
assistant controller, the secretary or any assistant secretary of the Company,
and delivered to the Trustee.


 


“Conversion Event” means the cessation of use of (i) a
Foreign Currency both by the government of the country or the confederation
which issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community or (ii) any currency unit or composite currency for the
purposes for which it was established.


 


“Corporate Trust Office” means the principal office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office, on the date of original execution of this
Indenture, is located at 101 Barclay Street, Fl.8W, New York, New York 10286,
Attention: Corporate Trust Administration or at any other time at such other
address as the Trustee may designate from time to time by notice to the parties
hereto, or at the principal corporate trust office of any successor trustee as
to which such successor trustee may notify the parties hereto in writing.


 


3

















 


“Corporation” includes corporations, limited liability
companies, incorporated associations, companies and business trusts.


 


“Depository” means, with respect to the Securities of
any series or any Tranche thereof, which, in accordance with the determination
of the Company, will be issued in whole or in part in the form of one or more
Global Securities, The Depository Trust Company, New York, New York, another
clearing agency or any successor registered under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.4 or Section 3.1. If at any
time there is more than one such Person, “Depository” as used with respect to
the Securities of any such series or Tranche thereof means the Depository with
respect to the Securities of that series or Tranche.


 


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


 


“Exchange Act” means the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder, in each case as
amended from time to time.


 


“Event of Default” means any event or condition
specified as such in Section 6.1.


 


“Foreign Currency” means any currency, currency unit
or composite currency, including, without limitation, the euro, issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.


 


“GAAP” means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Standards Accounting Board, and as are
applicable to the financial statements of the Company, in each case as of the
date of any computation required hereunder.


 


“Global Security” means, with respect to all or any
part of any series of Securities, a Security executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository’s instruction, all in accordance with this Indenture and pursuant to
a Company Order, which shall be registered in the name of the Depository or its
nominee and the ownership of which will be registered in a “book-entry” or
other system maintained by the Depository.


 


“Government Obligations” means securities which are (i) direct
obligations of the United States of America or the other government or
governments or confederation or association of governments which issued the
Foreign Currency in which the principal of or any premium or interest on such
Security or any Additional Amounts in respect thereof shall be payable, in each
case where the payment or payments thereunder are supported by the full faith
and credit of such government or governments or confederation or association of
governments; or (ii) obligations of a Person controlled or supervised by
and acting as an agency or


 


4

















 


instrumentality of the United States of America or
such other government or governments or confederation or association of
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments or confederation or
association of governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by such
depository receipt.


 


“Holder”, “Registered Holder” and “Securityholder”
mean, with respect to a Security, the Person in whose name such Security is
registered in the Securities Register (which terms, in the case of a Global
Security, mean the Depository, notwithstanding that the Depository maintains a
“book-entry” or other system for identification of ownership in respect of such
Global Security).


 


The term “include” (and other forms of such term)
means “include, without limitation”.


 


“Indebtedness” means, with respect to any Person, (i) the
principal of and any premium and interest on (a) indebtedness of such
Person for money borrowed or (b) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable; (ii) all Capitalized Lease Obligations of
such Person; (iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and all
obligations under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations
of such Person for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third Business Day following receipt by such Person of a demand
for reimbursement following payment on the letter of credit); (v) all
obligations of the type referred to in clauses (i) through (iv) of
other Persons and all dividends of other Persons for the payment of which, in
either case, such Person is responsible or liable as obligor, guarantor or
otherwise, the amount thereof being deemed to be the lesser of the stated
recourse, if limited, and the amount of the obligation or dividends of the
other Person; (vi) all obligations of the type referred to in clauses (i) through
(v) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the amount
of such obligation being deemed to be the lesser of the value of such property
or assets or the amount of the obligation so secured;


 


5

















 


and (vii) any amendments, modifications,
refundings, renewals or extensions of any indebtedness or obligation described
as Indebtedness in clauses (i) through (vi) above.


 


“Indenture” means this instrument as originally
executed and delivered or, if amended or supplemented as herein provided, as so
amended or supplemented, and includes the forms and terms of particular series
of Securities established as contemplated hereunder.


 


The term “interest” means, with respect to any
Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity and, when used with respect to
a Security which provides for the payment of Additional Amounts pursuant to Section 4.4,
includes such Additional Amounts.


 


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


 


“Judgment Currency” has the meaning specified in Section 14.11.


 


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


 


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


 


“New York Banking Day” has the meaning specified in Section 14.11.


 


“Officer” means the Chairman of the Board, the Vice
Chairman of the Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, any Assistant Controller or
any Assistant Secretary of the Company.


 


“Officer’s Certificate” means a certificate signed by
an Officer and delivered to the Trustee, except as otherwise specifically set
forth herein.


 


“Opinion of Counsel” means an opinion in writing
signed by legal counsel who may be an employee of or counsel to the Company.


 


“Original Issue Discount Security” means any Security
that provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration with respect thereto pursuant to
Section 6.1.


 


“Outstanding” (subject to Section 8.4) means,
with reference to Securities as of the date of determination, all Securities
authenticated and delivered under this Indenture, except:


 


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


 


6

















 


(b) Securities, or portions thereof, for the
payment or redemption of which moneys in the necessary amount shall have been
irrevocably deposited in trust with the Trustee or with any Paying Agent (other
than the Company) or shall have been set aside, segregated and held in trust by
the Company for the Holders of such Securities (if the Company shall act as its
own Paying Agent) or for the payment of which Government Obligations shall have
been irrevocably deposited in trust with the Trustee in accordance with ARTICLE
12; provided that, if such Securities, or portions thereof, are to be redeemed
prior to the Stated Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice;


 


(c) any such Security with respect to which the
Company has effected defeasance pursuant to the terms hereof, except to the
extent provided in Section 12.2;


 


(d) Securities in substitution for which other
Securities shall have been authenticated and delivered, or which shall have
been paid, pursuant to the terms of Section 3.7 (except with respect to
any such Security as to which proof satisfactory to the Trustee and the Company
is presented that such Security is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Company); and


 


(e) any such Security converted or exchanged as
contemplated by this Indenture into Common Stock of the Company or other
securities, if the terms of such Security provide for such conversion or
exchange pursuant to Section 3.1.


 


In determining whether Holders of the requisite
principal amount of Outstanding Securities of any or all series have made or
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, or are present to constitute a quorum at a meeting of Holders of
Securities, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration with respect thereto
pursuant to Section 6.1 and (ii) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such a
determination or relying upon any such quorum, consent or vote, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded.


 


“Overdue Rate” means, with respect to any Security of
Securities, the rate designated as such in or pursuant to the resolution of the
Board of Directors or the supplemental indenture, as the case may be, relating
to such Security as contemplated by Section 3.1.


 


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


 


“Periodic Offering” means an offering of Securities of
a series from time to time, any or all of the specific terms of which
Securities, which may be in one or more Tranches,


 


7

















 


including the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
or its agents from time to time subsequent to the initial request for
authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 3.1.


 


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


 


“Place of Payment” means, with respect to any
Security, the place or places where the principal of, and premium, if any, and
interest, if any, on, such Security are payable as specified pursuant to Section 3.1.


 


“Predecessor Security” of any particular Security
means every previous Security evidencing all or a portion of the same
Indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.7
in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen Security.


 


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


 


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


 


“Registered Holder”: See “Holder”.


 


“Regular Record Date” for the interest payable on any
Interest Payment Date on a Security means the date specified for that purpose
pursuant to Section 3.1 or as specified in Section 3.8.


 


“Required Currency” has the meaning specified in Section 14.11.


 


“Responsible Officer” means, with respect to the
Trustee, any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers, and also, with respect to a particular
matter, any other officer, to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.


 


“Securities Act” means the Securities Act of 1933, as
amended.


 


“Securities Register” and “Securities Registrar” has
the meaning specified in Section 3.6.


 


“Security” or “Securities” has the meaning stated in
the recitals of this Indenture.


 


8

















 


“Senior Indebtedness” means, with respect to the
Securities of any particular series, all Indebtedness of the Company
outstanding at any time, except (a) the Securities of such series, (b) Indebtedness
as to which, by the terms of the instrument creating or evidencing the same, it
is provided that such Indebtedness is subordinated to or pari passu with the
Securities of such series, (c) Indebtedness of the Company to, or
guaranteed on behalf of, a Subsidiary of the Company, or any officer, director
or employee of the Company or any Subsidiary of the Company, (d) interest
accruing after the filing of a petition initiating any proceeding referred to
in Section 6.1(f) and Section 6.1(g) unless such interest
is an allowed claim enforceable against the Company in a proceeding under
federal or state bankruptcy laws, (e) trade accounts payable and (f) any
liability for income, franchise, real estate or other taxes owed or owing.


 


“Special Record Date” for the payment of any defaulted
interest means a date fixed pursuant to Section 3.8.


 


“Stated Maturity” means, with respect to any Security
or any installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, the date specified in such Security as the fixed
date on which the principal of such Security or such installment of principal
or interest is, or such Additional Amounts are, due and payable (without regard
to any provisions for redemption, prepayment, acceleration, purchase or
extension).


 


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


 


“Tranche” means a group of Securities which (a) are
of the same series and (b) are identical except as to principal amount
and/or date of issuance.


 


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


 


“Trustee” means the Person identified as “Trustee” in
the first paragraph hereof and, subject to the provisions of ARTICLE 7, shall
also include any successor trustee.


 


“United States,” except as otherwise provided in or
pursuant to this Indenture or any Board Resolution, Company Order and Company
Request or both, means the United States of America (including the states
thereof and the District of Columbia), its territories and possessions and
other areas subject to its jurisdiction.


 


9

















 


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


 


10
















 


ARTICLE
2


SECURITY
FORMS


 


Section 2.1 Forms Generally.


 


The Securities of each series shall be in
substantially such form as shall be established pursuant to Section 3.1,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture or any
indenture supplemental hereto, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as the
Company may deem appropriate and as are not contrary to the provisions of this
Indenture, or as may be required to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange or of any
automated quotation system, or to conform to usage, all as determined by the
officers executing such Securities, as conclusively evidenced by their
execution of the Securities.


 


The definitive Securities shall be prepared by the
Company and shall be printed, lithographed or engraved on steel-engraved
borders, or may be produced in any other manner, all as determined by the
officers executing such Securities, as conclusively evidenced by their
execution of such Securities, subject to the rules of any securities
exchange or automated quotation system on which such Securities are listed or
quoted and (with respect to Global Securities) to the rules of the
Depository.


 


Section 2.2 Form of Trustee’s Certificate of
Authentication.


 


The Trustee’s Certificate of Authentication on all
Securities shall be in substantially the following form:


 


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


 


[ ], as Trustee


 


By


 


Authorized
Signatory


 


Dated


 


11

















 


Section 2.3 Form of Trustee’s Certificate of
Authentication by an Authenticating Agent.


 


If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee’s
Certificate of Authentication by such Authenticating Agent on all Securities of
each such series shall be in substantially the following form:


 


[ ], as Trustee


 


By [NAME
OF AUTHENTICATING AGENT],


Authenticating
Agent


 


By


Authorized
Signatory


 


Section 2.4 Securities Issuable in the Form of
Global Securities.


 


(a) If the Company shall establish pursuant to Section 3.1
that the Securities of a particular series are to be issued in whole or in part
as one or more Global Securities, then the Company shall execute, and the
Trustee shall, in accordance with Section 3.3 and the Company Order
deliver to the Trustee thereunder, authenticate and make available for
delivery, one or more Global Securities, each of which (i) shall represent
an aggregate principal amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Global Security
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges, (ii) shall be registered in the name of the Depository or its
nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository’s instruction and (iv) if required by the
Depository, shall bear a legend reflecting the Depository’s interest in such
Global Security.


 


(b) Notwithstanding any provision of Section 3.6,
any Global Security thereof may be transferred, in whole but not in part, and
in the manner provided in Section 3.6, only to another nominee of the
Depository for such series or Tranche, or to a successor Depository for such
series selected or approved by the Company or to a nominee of such successor
Depository.


 


(c) If at any time the Depository for Securities
of a series or Tranche thereof notifies the Company that it is unwilling or
unable to continue as Depository for Securities of such series or Tranche or if
at any time the Depository shall no longer be registered or in good


 


12

















 


standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depository 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 shall no longer be
applicable to the Securities of such series or Tranche and the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series or Tranche,
will authenticate and make available for delivery, Securities of such series or
Tranche, in authorized denominations, and in an aggregate principal amount
equal to the aggregate principal amount of the Global Security or Global
Securities of such series or Tranche in exchange for such Global Security or
Global Securities.


 


The Company may at any time determine that Securities
of any series or Tranche thereof shall no longer be represented by one or more
Global Securities and that the provisions of this Section shall no longer
apply to the Securities of such series or Tranche. In such event the Company
will execute and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series or Tranche,
will authenticate and make available for delivery Securities of such series or
Tranche, in authorized denominations, and in an aggregate principal amount
equal to the aggregate principal amount of the Global Security or Global
Securities of such series or Tranche in exchange for such Global Security.


 


If specified by the Company pursuant to Section 3.1
with respect to a series of Securities or Tranche thereof, the Depository for
such series or Tranche may surrender a Global Security for such series or
Tranche in exchange in whole or in part for individual Securities of such
series or Tranche on such terms as are acceptable to the Company and such
Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,


 


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


 


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


 


In any exchange provided for in any of the preceding
paragraphs of this Section, the Company will execute and the Trustee will
authenticate and make available for delivery individual Securities in
registered form in authorized denominations.


 


Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section shall
be registered in such names and in such authorized denominations as the
Depository for such Global Security shall instruct the Trustee.


 


13

















 


The Trustee shall make such Securities available for
delivery to the Persons in whose names such Securities are so registered.


 


ARTICLE
3


THE
SECURITIES


 


Section 3.1 Amount Unlimited; Issuable in Series.


 


The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited. The
Securities of each series shall be subordinated in right of payment to all
Senior Indebtedness with respect to such series as provided in ARTICLE 13.


 


The Securities may be issued from time to time in one
or more series. With respect to the Securities of any particular series, there
shall be established in, or pursuant to the authority granted in, a resolution
of the Board of Directors, and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental hereto prior to the issuance
of Securities of a series:


 


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


 


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


 


(c) any limit upon the aggregate principal amount
of the Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.4, Section 3.6, Section 3.7,
Section 3.10 or Section 15.3);


 


(d) the date or dates on which the Securities of
the series may be issued;


 


(e) the date or dates, which may be serial, on
which the principal of, and premium, if any, on, the Securities of the series
are payable;


 


(f) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if any, any
Overdue Rate (including the rate or rates at which overdue principal shall bear
interest, if different from the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any); any formulary or
other method or other means by which any such rate or rates shall be
determined, by reference to an index or other fact or event ascertainable
outside this Indenture or otherwise; the date or dates from which such interest
shall accrue the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date, if other than as set forth in Section 3.8,
for the determination of Holders to whom interest is payable, whether and under
what circumstances Additional Amounts on such Securities or any of them shall
be payable, the notice, if any, to Holders regarding the determination of
interest on a floating rate Security, and the manner of giving such notice, and


 


14

















 


the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;


 


(g) the place or places where the principal of,
and premium, if any, and interest on or any Additional Amounts, if any, with
respect to such Securities of the series shall be payable (if other than as
provided in Section 4.2);


 


(h) the provisions, if any, establishing the
price or prices at which, the date or dates on which, the period or periods
within 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, pursuant to
any sinking fund or otherwise;


 


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


 


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


 


(k) whether the Securities of the series will be
convertible into shares of Common Stock of the Company and/or exchangeable for
other securities, whether or not issued by the Company, and, if so, the terms
and conditions upon which such Securities will be so convertible or
exchangeable, 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;


 


(l) whether the Securities of the series are to
be issued as Original Issue Discount Securities and, if so, the amount of the
discount with respect thereto;


 


(m) if other than the principal amount thereof,
the portion of the principal amount of the Securities of the series which shall
be payable upon declaration of acceleration with respect thereto pursuant to Section 6.1
or payable in bankruptcy pursuant to Section 6.2;


 


(n) the relative degree, if any, to which
Securities of such series shall be senior to or be subordinated to other series
of Securities or other Indebtedness of the Company in right of payment, whether
such other series of Securities or other Indebtedness is outstanding or not;


 


(o) any Events of Default or restrictive
covenants provided for with respect to the Securities of the series, if other
than as set forth in Section 6.1, ARTICLE 4 and ARTICLE 11;


 


(p) in case the Securities of the series do not
bear interest, the applicable dates for the purpose of Section 5.1(a);


 


15

















 


(q) whether either or both of Section 12.2(b) relating
to defeasance or Section 12.2(c) relating to covenant defeasance
shall not be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 12.2(c) relating to the
Securities of such series which shall be subject to covenant defeasance, and
any deletions from, or modifications or additions to, the provisions of ARTICLE
12 in respect of the Securities of such series;


 


(r) any trustees, paying agents, transfer agents
or registrars with respect to the Securities of the series;


 


(s) whether the Securities of the series are
issuable in whole or in part as one or more Global Securities and, in such
case, the identity of the Depository for such Global Security or Global Securities;


 


(t) any restrictions on transfer with respect to
the Securities of the series and any legend reflecting such restrictions to be
placed on such Securities;


 


(u) if the amount of payment of principal of, and
premium, if any, or interest on or Additional Amounts, if any, with respect to
such Securities of the series may be determined with reference to an index,
formula or other method, and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined;


 


(v) any exceptions to Section 14.8 or in the
definition of “Business Day” with respect to the Securities of the series;


 


(w) if other than U.S. dollars, the Foreign
Currency in which the Securities of such series shall be denominated and in
which payments or principal of, and any premium or interest on or Additional
Amounts with respect to, such Securities shall or may be payable;


 


(x) if the principal of, any premium or interest
on or any Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or otherwise, in
Dollars or in a Foreign Currency other than that in which such Securities are
stated to be payable, the date or dates on which, the period or periods within
which, and the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between the
Currency in which such Securities are stated to be payable and the Currency in
which such Securities or any of them are to be paid pursuant to such election,
and any deletions from or modifications of or additions to the terms of this
Indenture to provide for or to facilitate the issuance of Securities
denominated or payable, at the election of the Company or a Holder thereof or
otherwise, in a Foreign Currency; and


 


(y) any other terms of the series and any other
modifications or additions to this Indenture in respect of such Securities
(which terms shall not be contrary to the provisions of this Indenture).


 


16

















 


With respect to Securities of a series subject to a
Periodic Offering, such resolution of the Board of Directors or indenture
supplemental hereto may provide general terms or parameters and may provide
that the specific terms of particular Securities, and the Persons authorized to
determine such terms or parameters, may be determined in accordance with or
pursuant to the Company Order referred to in Section 3.1.


 


All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise
be provided in, or pursuant to the authority granted in, such resolution of the
Board of Directors or in any such indenture supplemental hereto.


 


Anything herein to the contrary notwithstanding, the
Trustee shall be under no obligation to authenticate and deliver Securities of
any series the terms of which, established as contemplated by this Section,
would affect the rights, duties, obligations, liabilities or immunities of the
Trustee under this Indenture.


 


Section 3.2 Form and Denominations.


 


In the absence of any specification pursuant to Section 3.1
with respect to the Securities of any series, the Securities of such series
shall be issuable in fully registered form, without coupons, in denominations
of $1,000 and any integral multiple thereof.


 


Section 3.3 Authentication, Dating and Delivery
of Securities.


 


At any time and from time to time after the original
execution and delivery of this Indenture, the Company may deliver Securities of
any series, executed by the Company, to the Trustee for authentication. Except
as otherwise provided in this Article, the Trustee shall thereupon authenticate
and make available for delivery, or cause to be authenticated and delivered,
said Securities to or upon a Company Order, without any further action by the
Company; provided, however, that the Trustee shall authenticate and make
available for delivery Securities of such series for original issue from time
to time in the aggregate principal amount established for such series pursuant
to such procedures, acceptable to the Trustee and to such recipients, as may be
specified from time to time by a Company Order. The maturity dates, original
issue dates, interest rates and any other terms of the Securities of such
series shall be determined by or pursuant to such Company Order and procedures.
If provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral instructions from the Company or
its duly authorized agent, which instructions shall be promptly confirmed in
writing.


 


In authenticating such Securities and accepting the
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be provided with, prior to the initial authentication of such
Securities, and (subject to Section 7.1) shall be fully protected in
relying upon:


 


(a) a Board Resolution relating thereto;


 


17

















 


(b) an Officer’s Certificate or an executed
supplemental indenture setting forth the terms of such Securities as provided
in Section 3.1;


 


(c) an Officer’s Certificate which shall state
that all conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been complied with, that no Event of Default with
respect to any series of Securities has occurred and is continuing and that the
issuance of such Securities does not constitute and will not result in (i) any
Event of Default or any event or condition, which, upon the giving of notice or
the lapse of time or both, would become an Event of Default or (ii) any
default under the provisions of any other instrument or agreement by which the
Company is bound; and


 


(d) an Opinion of Counsel, which shall state:


 


(i) that the form and the terms of such Securities
have been duly authorized by the Company and have been established in
conformity with the provisions of this Indenture;


 


(ii) 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
binding obligations of the Company enforceable in accordance with their terms,
except to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer and other similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law);


 


(iii) that no consent, approval, authorization,
order, registration or qualification of or with any court or any governmental
agency or body having jurisdiction over the Company is required for the
execution and delivery of such Securities by the Company, except such as have
been obtained (and except that no opinion need be expressed as to state
securities or “blue sky” laws); and


 


(iv) all applicable laws and requirements in
respect of the execution and delivery by the Company of such Securities have
been complied with;


 


Notwithstanding the provisions of Section 3.1 and
of the immediately preceding paragraph, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be provided with the
Officer’s Certificate otherwise required pursuant to Section 3.3(c) and
the Opinion of Counsel required by this Section 3.3(d) only once at
or prior to the time of the first authentication and delivery of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all such Securities) and that, in lieu of the opinions
described in clauses (ii) and (iii) above, Counsel may opine that:


 


(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders or pursuant to such
procedures as may be specified from time to time by a Company Order or Orders,
all as contemplated by and in accordance with the


 


18

















 


instrument or instruments delivered pursuant to clause
(i) above, such terms will have been duly authorized by the Company and
will have been established in conformity with the provisions of this Indenture;
and


 


(y) when such Securities shall have been
authenticated and delivered by the Trustee in accordance with this Indenture
and the Company Order or Orders or the specified procedures referred to in
paragraph (x) above and issued and delivered by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, such
Securities will constitute valid obligations of the Company enforceable in
accordance with their terms except to the extent enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors rights generally and by the
effect of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).


 


With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the authorization
by the Company of any of such Securities, the forms and terms thereof, the
validity thereof and the compliance of the authentication and delivery thereof
with the terms and conditions of this Indenture, upon the Opinion or Opinions
of Counsel, the Officer’s Certificate and the certificates and other documents
delivered pursuant to this Section 3.3 at or prior to the time of the
first authentication and delivery of Securities of such series until any of
such opinions, certificates or other documents have been superseded or revoked
or expire by their terms; provided, however, that any request by the Company to
the Trustee to authenticate and deliver Securities of such series shall
constitute a representation and warranty by the Company that as of the date of
such request the statements made in the most recent Officer’s Certificate
delivered pursuant to Section 3.3(c) are true and correct as if made
on and as of the date thereof.


 


The Trustee shall have the right to decline to
authenticate and make available for delivery any Securities under this Section if
the Trustee, being advised by counsel, determines that such action would expose
the Trustee to personal liability.


 


Each Security shall be dated the date of its authentication,
except as otherwise provided pursuant to Section 3.1 with respect to the
series of which such Security is a part and except that any substitute Security
under Section 3.7 shall be dated so that neither gain nor loss in interest
shall result from any mutilation, destruction, loss or theft of the relevant
Predecessor Security.


 


Section 3.4 Execution of Securities.


 


The Securities shall be signed in the name of and on
behalf of the Company by both (a) its president or any vice president and (b) its
treasurer, any assistant treasurer, its secretary or any assistant secretary,
under its corporate seal which may, but need not, be attested. Such signatures
may be the manual or facsimile signatures of such officers. The seal of the
Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced thereon. Typographical and other
minor errors or defects in any such reproduction


 


19

















 


of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.


 


In case any officer of the Company who shall have
signed any of the Securities shall cease to be such officer before the Security
so signed shall be authenticated and delivered by or on behalf of the Trustee
or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Securities had not ceased to be such officer of the Company; and any Security
may be signed on behalf of the Company by such Persons as, at the actual date
of the original execution of such Security, shall be the proper officers of the
Company, although at the date of the original execution and delivery of this
Indenture, or at the date of such Security, any such Person was not such an
officer.


 


Section 3.5 Certificate of Authentication.


 


No Security shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form
hereinbefore recited, executed by or on behalf of the Trustee by manual
signature. Such certificate by or on behalf of the Trustee upon any Security
executed by the Company 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.


 


Section 3.6 Registration, Registration of
Transfer and Exchange.


 


Subject to the conditions set forth below (and
subject, with respect to Global Securities, to Section 2.4), Securities of
any series may be exchanged for a like aggregate principal amount of Securities
of the same series and having the same terms but in other authorized
denominations. Securities to be exchanged shall be surrendered at the offices
or agencies to be maintained for such purposes as provided in Section 4.2,
and the Company shall execute and the Trustee or any Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Security
or Securities which the Holder making the exchange shall be entitled to
receive.


 


The Company shall keep or cause to be kept, at one of
said offices or agencies maintained pursuant to Section 4.2, a register
for each series of Securities issued hereunder (hereinafter collectively
referred to as the “Securities Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall, subject to the provisions
of Section 2.4, provide for the registration of Securities of such series
and shall register the transfer of Securities of such series as in this Article provided.
The Securities Register shall be in written form or in any other form capable
of being converted into written form within a reasonable time. The Trustee is
hereby appointed as the initial “Securities Registrar” for the purpose of
registering Securities and registering transfers of Securities as herein
provided. Subject to the provisions of Section 2.4, upon surrender for
registration of transfer of any Security of any series at any such office or
agency, the Company shall execute and the Trustee


 


20
















 


or any Authenticating Agent shall authenticate and
make available for delivery in the name of transferee or transferees a new
Security or Securities of the same series for an equal aggregate principal
amount.


 


The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.


 


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


 


Each Security issued upon registration of transfer or
exchange of Securities pursuant to this Section shall be the valid
obligation of the Company, evidencing the same indebtedness and entitled to the
same benefits under this Indenture as the Security or Securities surrendered
upon registration of such transfer or exchange.


 


No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.10, Section 10.6
or Section 15.3 not involving any transfer.


 


The Company shall not be required (a) to issue,
exchange or register the transfer of any Securities of any series during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of such series and ending at
the close of business on the day of such mailing, or (b) to exchange or
register the transfer of any Securities selected, called or being called for
redemption except, in the case of any Security to be redeemed in part, the
portion thereof not to be redeemed.


 


Section 3.7 Mutilated, Destroyed, Lost and Stolen
Securities.


 


In case any temporary or definitive Security shall
become mutilated (whether by defacement or otherwise) or be destroyed, lost or
stolen, and in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall, except
as otherwise provided in this Section, execute, and upon a Company Request, the
Trustee shall authenticate and make available for delivery, a new Security of
the same series, tenor and principal amount, bearing a number, letter or other
distinguishing symbol


 


21

















 


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 to the Trustee and any
agent of the Company or 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 the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.


 


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


 


In case any Security which has matured or is about to
mature or has been called for redemption in full 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). In every case, the applicant for
such payment shall furnish to the Company and to the Trustee and any agent of
the Company or the Trustee such security or indemnity as any of them may
require to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee and
any agent of the Company or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.


 


Every substitute Security of any series issued
pursuant to the provisions of this Section by virtue of the fact that any
such Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately with any and
all other Securities of such series duly authenticated and delivered hereunder.
All Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions of this Section are
exclusive with respect to the replacement or payment of mutilated (whether by
defacement or otherwise) or destroyed, lost or stolen Securities and shall
preclude 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 3.8 Payment of Interest and Certain
Additional Amounts; Interest Rights and Certain Additional Amounts Preserved.


 


The Holder of any Securities at the close of business
on the Regular Record Date with respect to any Interest Payment Date shall be entitled
to receive the interest, if any, and any Additional Amounts payable on such
Interest Payment Date notwithstanding the cancellation of such Securities upon
any registration of transfer or exchange subsequent to the Regular Record Date
and prior to such Interest Payment Date, and, if provided for in the Board
Resolution or


 


22

















 


supplemental indenture pursuant to Section 3.1,
in the case of a Security issued between a Regular Record Date and the initial Interest
Payment Date relating to such Regular Record Date, interest for the period
beginning on the date of issue and ending on such initial Interest Payment Date
shall be paid to the Person to whom such Security shall have been originally
issued. Except as otherwise specified as contemplated by Section 3.1, for
Securities of a particular series the term “Regular Record Date” as used in
this Section with respect to any Interest Payment Date shall mean the
close of business on the last day of the calendar month preceding such Interest
Payment Date if such Interest Payment Date is the fifteenth day of a calendar
month and shall mean the close of business on the fifteenth day of the calendar
month preceding such Interest Payment Date if such Interest Payment Date is the
first day of a calendar month, whether or not such day shall be a Business Day.
At the option of the Company, payment of interest on any Security may be made
by check mailed to the address of the Person entitled thereto (which shall be
the Depository in the case of Global Securities) as such address shall appear
in the Securities Register.


 


If and to the extent the Company shall default in the
payment of the interest due or any Additional Amounts on such Interest Payment
Date in respect of any Securities, such defaulted interest shall be paid by the
Company at its election in each case, as provided in clause (a) or (b) below:


 


(a) The Company may make payment of any defaulted
interest to the Holder of Securities at the close of business on a Special
Record Date established by notice given by mail, by or on behalf of the
Company, to such Holder not less than 15 days preceding such Special Record
Date, such Special Record Date to be not less than 10 days preceding the date
for payment of such defaulted interest.


 


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


 


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


 


Section 3.9 Cancellation of Securities;
Destruction Thereof.


 


All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, shall, if surrendered to the Company or
any Paying Agent or any Securities Registrar, 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 permitted by
any of the provisions of this Indenture.


 


23

















 


All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its normal operating procedures,
unless by a company order the Company directs their return to it. If the
Company shall acquire any of the Securities, 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 3.10 Temporary Securities.


 


Pending the preparation by the Company of definitive
Securities of any series, the Company may execute and the Trustee shall
authenticate and make available for delivery in the manner provided in Section 3.3,
temporary Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities of
such series 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 with the concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security 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. Without unreasonable delay the Company shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at the
Corporate Trust Office of the Trustee, and the Trustee shall authenticate and
make available for delivery in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of the same series. Such
exchange shall be made by the Company at its own expense and without any charge
therefor except that in case of any such exchange involving any registration of
transfer the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.


 


Section 3.11 Computation of Interest.


 


Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.


 


Section 3.12 CUSIP Numbers.


 


The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders as set-forth in Section 15.2.


 


24

















 


ARTICLE
4


COVENANTS
OF THE COMPANY


 


The Company covenants and agrees for the benefit of
each series of Securities (except to the extent that any series of Securities
is excluded from the benefits of any of such covenants pursuant to Section 3.1(o))
that on and after the date of original execution of this Indenture and so long
as any of the Securities of such series remain Outstanding:


 


Section 4.1 Payment of Securities.


 


The Company will duly and punctually pay or cause to
be paid the principal of any premium and interest on, and any Additional
Amounts with respect to the Securities of such series at the place or places,
at the respective times and in the manner provided in such Securities and in
the Indenture.


 


Section 4.2 Offices or Agency.


 


So long as any of the Securities remain Outstanding,
the Company will maintain in the Borough of Manhattan, The City of New York,
New York, an office or agency where such Securities may be presented or
surrendered for payment, where such Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of such Securities and this Indenture may be served,
which office or agency shall initially be the Corporate Trust Office of the
Trustee or, if the Corporate Trust Office of the Trustee is not located in the
Borough of Manhattan, The City of New York, such office or agency shall be the
principal corporate trust office of the Authenticating Agent designated
pursuant to Section 7.14 hereof. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such required office
or agency or shall fail to furnish the Trustee with the required information
with respect thereto, presentations, surrenders, notices and demands in respect
of Securities may be made or served at the Corporate Trust Office of the
Trustee and the corporate trust office of any Authenticating Agent appointed
hereunder; and the Company hereby appoints the Trustee and any Authenticating
Agent appointed hereunder its agents to receive all such presentations,
surrenders, notices and demands.


 


The Company may also from time to time designate one
or more other offices or agencies (in or outside The City of New York) where
the Securities of one or more series, or any Tranche thereof may be presented
or surrendered for any or all of such purposes, and may from time to time rescind
such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain for such
purposes an office or agency in the Borough of Manhattan, The City of New York.
The Company will promptly notify the Trustee of any such designation or
rescission thereof.


 


Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, if and so long as the Securities of
any series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one exchange rate
agent.


 


25

















 


Section 4.3 Money for Securities Payments to Be
Held in Trust.


 


If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it shall, on or before each due
date of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to
pay the principal or any premium, interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and shall promptly notify the Trustee in writing of its action
or failure so to act.


 


Whenever the Company shall have one or more Paying
Agents for any series of Securities, it shall, on or prior to each due date of
the principal of, any premium or interest on or any Additional Amounts with
respect to any Securities of such series, deposit with any Paying Agent a sum
(in the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the
principal and any premium, interest or Additional Amounts so becoming due, such
sum to be held in trust for the benefit of the Persons entitled thereto, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee in writing of its action or failure so to act.


 


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


 


(a) hold all sums held by it for the payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to Securities of such series or Tranche in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;


 


(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such series) in the making
of any payment of principal of, any premium or interest on or any Additional
Amounts with respect to the Securities of such series; and


 


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


 


The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same terms 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 sums.


 


26

















 


Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 12.3, Section 12.4 and Section 12.5.


 


Section 4.4 Additional Amounts.


 


All payments of principal of and premium, if any,
interest and any other amounts on, or in respect of, the Securities of any
series shall be made without withholding or deduction at source for, or on
account of, any present or future taxes, fees, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
Bermuda or any other jurisdiction in which the Company is organized (each, a
“taxing jurisdiction”) or any political subdivision or taxing authority thereof
or therein, unless such taxes, fees, duties, assessments or governmental
charges are required to be withheld or deducted by (i) the laws (or any
regulations or ruling promulgated thereunder) of a taxing jurisdiction or any
political subdivision or taxing authority thereof or therein or (ii) an
official position regarding the application, administration, interpretation or
enforcement of any such laws, regulations or rulings (including, without
limitation, a holding by a court of competent jurisdiction or by a taxing
authority in a taxing jurisdiction or any political subdivision thereof).


 


If a withholding or deduction at source is required,
the Company shall, subject to certain limitations and exceptions set forth
below, pay to the Holder of any such Security such Additional Amounts as may be
necessary so that every net payment of principal, premium, if any, interest or
any other amount made to such Holder, after such withholding or deduction,
shall not be less than the amount provided for in such Security and this
Indenture to be then due and payable; provided, however, that the Company shall
not be required to make payment of such Additional Amounts for or on account
of:


 


(a) any tax, fee, duty, assessment or
governmental charge of whatever nature which would not have been imposed but
for the fact that such Holder: (A) was a resident, domiciliary or national
of, or engaged in business or maintained a permanent establishment or was
physically present in, the relevant taxing jurisdiction or any political
subdivision thereof or otherwise had some connection with the relevant taxing
jurisdiction other than by reason of the mere ownership of, or receipt of
payment under, such Security; (B) presented such Security, where
presentation is required, for payment in the relevant taxing jurisdiction or
any political subdivision thereof, unless such Security could not have been
presented for payment elsewhere; or (C) presented such Security, where
presentation is required, more than thirty (30) days after the date on which
the payment in respect of such Security first became due and payable or
provided for, whichever is later, except to the extent that the Holder would
have been entitled to such Additional Amounts if it had presented such Security
for payment on any day within such period of thirty (30) days;


 


(b) any estate, inheritance, gift, sale,
transfer, personal property or similar tax, assessment or other governmental
charge;


 


27

















 


(c) any tax, assessment or other governmental charge
that is imposed or withheld by reason of the failure by the Holder or the
beneficial owner of such Security to comply with any reasonable request by the
Company addressed to the Holder within 90 days of such request (A) to
provide information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (B) to make any declaration or other
similar claim or satisfy any information or reporting requirement, which, in
the case of (A) or (B), is required or imposed by statute, treaty,
regulation or administrative practice of the relevant taxing jurisdiction or
any political subdivision thereof as a precondition to exemption from all or
part of such tax, assessment or other governmental charge;


 


(d) any withholding or deduction required to be
made pursuant to any EU Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meetings of 26-27 November 2000, 3 June 2003
or any law implementing or complying with, or introduced in order to confirm
to, such EU Directive; or


 


(e) any combination of items (a), (b), (c) and
(d);


 


nor shall Additional Amounts be paid with respect to
any payment of the principal of, or premium, if any, interest or any other
amounts on, any such Security to any Holder who is a fiduciary or partnership
or other than the sole beneficial owner of such Security to the extent such
payment would be required by the laws of the relevant taxing jurisdiction (or
any political subdivision or relevant taxing authority thereof or therein) to
be included in the income for tax purposes of a beneficiary or partner or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such Additional Amounts
had it been the Holder of the Security.


 


Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium, interest or any other
amounts on, or in respect of, any Security of any series or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding the payment of Additional Amounts in those provisions
hereof where such express mention is not made.


 


Except as otherwise provided in or pursuant to this
Indenture or the related Board Resolution of the applicable series, at least 10
days prior to the first Interest Payment Date with respect to a series of
Securities (or if the Securities of such series shall not bear interest prior
to Maturity, the first day on which a payment of principal is made), and at
least 10 days prior to each date of payment of principal or interest if there
has been any change with respect to the matters set forth in the
below-mentioned Officer’s Certificate, the Company shall furnish to the Trustee
and the principal Paying Agent or Paying Agents, if other than the Trustee, an
Officer’s Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and premium, if any, interest or
any other


 


28

















 


amounts on the Securities of such series shall be made
to Holders of Securities of such series without withholding for or on account
of any tax, fee, duty, assessment or other governmental charge described in
this Section 4.4. If any such withholding shall be required, then such
Officer’s Certificate shall specify by taxing jurisdiction the amount, if any,
required to be withheld on such payments to such Holders of Securities and the
Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by this Section 4.4. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officer’s Certificate furnished pursuant to this Section 4.4.


 


Section 4.5 Redemption for Tax Purposes.


 


The Company may redeem the Securities at its option,
in whole but not in part, at a Redemption Price equal to 100% of the principal
amount, together with accrued and unpaid interest and Additional Amounts, if
any, to the date fixed for redemption, at any time it receives an opinion of
counsel that as a result of (i) any change in or amendment to the laws or
treaties (or any regulations or rulings promulgated under these laws or
treaties) of Bermuda or any taxing jurisdiction (or of any political
subdivision or taxation authority affecting taxation) or any change in the
application or official interpretation of such laws, regulations or rulings, or
(ii) any action taken by a taxing authority of Bermuda or any taxing
jurisdiction (or any political subdivision or taxing authority affecting
taxation) which action is generally applied or is taken with respect to the
Company, or (iii) a decision rendered by a court of competent jurisdiction
in Bermuda or any taxing jurisdiction (or any political subdivision) whether or
not such decision was rendered with respect to the Company, there is a
substantial probability that the Company will be required as of the next
Interest Payment Date to pay Additional Amounts with respect to the Securities
as provided in Section 4.4 and such requirements cannot be avoided by the
use of reasonable measures (consistent with practices and interpretations
generally followed or in effect at the time such measures could be taken) then
available. If the Company elects to redeem the Securities under this provision
it will give written notice of such election to the Trustee. If the Company
elects to redeem the Securities under this provision it will also mail a notice
of redemption at least 30 days but no more than 60 days before the Redemption
Date to each Holder of the Securities to be redeemed. Unless the Company
defaults in the payment of the Redemption Price, on and after the Redemption
Date, interest will cease to accrue on the Securities or portions thereof
called for redemption. Any such redemption will be subject to ARTICLE 15
hereof.


 


Section 4.6 Corporate Existence.


 


Subject to ARTICLE 11, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
its legal existence and rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to any
Holder.


 


29

















 


Section 4.7 Waiver of Certain Covenants.


 


The Company may omit in any particular instance to
comply with any term, provision or condition set forth in Section 4.8 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.


 


Section 4.8 Certificates to Trustee.


 


The Company will, within 120 days after the end of
each fiscal year, file with the Trustee an Officer’s Certificate complying with
the provisions of the second paragraph of Section 14.6, covering the
period from the date of original execution of this Indenture to December 31,
2003 in the case of the first such certificate, and covering the preceding
calendar year in the case of each subsequent certificate, and stating whether
or not, to the knowledge of each of the signers, one of whom shall be principal
executive officer, principal financial officer or principal accounting officer,
the Company has complied with the conditions and covenants on its part
contained in this Indenture, and, if the signers, to the best of their
knowledge, know of any event which is, or after notice or lapse of time or both
would become, a default by the Company in the performance, observance or
fulfillment of any such condition or covenant, specifying each such default and
the nature thereof. For the purpose of this Section, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.


 


The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or any
event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (c) of Section 6.1.


 


Section 4.9 Calculation of Original Issue
Discount.


 


The Company shall file with the Trustee promptly at
the end of each calendar year (i) a written notice specifying the amount
of original issue discount (including daily rates and accrual periods) accrued
on any Outstanding Original Issue Discount Securities as of the end of such
year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Code, as amended from time to
time.


 


30
















 


ARTICLE
5


SECURITYHOLDER
LISTS AND REPORTS BY THE


COMPANY
AND THE TRUSTEE


 


Section 5.1 Company to Furnish Trustee
Information as to Names and Addresses of Securityholders.


 


The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders of the Securities
of each series semiannually and not later than June 30 and December 31
in each year, and at such other times as the Trustee may request in writing, as
of a date no more than 15 days prior to the date such information is so
furnished; provided that, if and so long as the Trustee shall be the Securities
Registrar for such series, such list shall not be required to be furnished.


 


Section 5.2 Preservation and Disclosure of
Securityholder Lists.


 


(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information received by it pursuant to Section 5.1
and similar information received by it in any other capacity under this
Indenture and afford Holders access to the information preserved by it, all to
such extent, if any, and in such manner as shall be required by the Trust
Indenture Act.


 


(b) Each and every Holder of Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Paying Agent shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
Section 5.2(a), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 5.2(a). In
case three or more Holders of Securities of any series (for purposes of this
Section, “applicants”) apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either:


 


(i) afford to such applicants access to the
information preserved at the time by the Trustee in accordance with the
provision of subsection (a) of this Section 5.2, or


 


(ii) inform such applicant as to the approximate
number of Holders of Securities of such series or all Securities, as the case
may be, whose names and addresses appear in the information preserved at the
time by the Trustee, in accordance


 


31

















 


with the provisions of subsection (a) of this Section 5.2,
and as to the approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such application. If the
Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Securities, as the case may
be, whose name and address appear in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of this Section 5.2,
a copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of a mailing, unless within five days after such tender,
the Trustee shall mail to such applicants and file with the Commission together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities of such series or all Securities, as the
case may be, or could be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of such order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.


 


Section 5.3 Reports by the Company.


 


The Company covenants:


 


(a) to file with the Trustee, within 15 days
after the Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;


 


(b) to file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with respect
to compliance by the Company with the conditions and


 


32

















 


covenants provided for in this Indenture as may be
required from time to time by such rules and regulations; and


 


(c) to transmit by mail to the Holders of
Securities in the manner and to the extent provided in Section 5.4 within
30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section as may be required to
be transmitted to such Holders by rules and regulations prescribed from
time to time by the Commission.


 


The delivery of such reports, information and
documents to the Trustee pursuant to this Section 5.3 is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates) other than with respect to Section 7.2.


 


Section 5.4 Reports by the Trustee.


 


(a) Within 60 days after May 15 in each year
following the date of original execution of this Indenture, so long as any
Securities are Outstanding hereunder, the Trustee shall transmit by mail (with
a copy to the Company) to the Securityholders of such series in the manner and
to extent provided in Trust Indenture Act Section 313(c), a brief report,
as provided by the Trust Indenture Act Sections 313(a) and (b).


 


(b) A copy of each such report shall, at the time
of such transmission to the Securityholders of any series, be furnished to the
Company and be filed by the Trustee with each stock exchange upon which the
Securities of such series are listed and also with the Commission. The Company
agrees to notify the Trustee promptly when and as the Securities of any series
become admitted to trading on any national securities exchange.


 


ARTICLE
6


REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS


ON EVENT
OF DEFAULT


 


Section 6.1 Event of Default Defined;
Acceleration of Maturity; Waiver of Default.


 


“Event of Default”, with respect to the Securities of
any series, wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the applicable resolution of the Board of Directors or in
the supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated by Section 3.1:


 


33

















 


(a) default in the payment of any interest on any
of the Securities of such series, or any Additional Amounts payable with
respect thereto, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days and the time for payment of
such interest or Additional Amounts has not been extended; provided, however
that if the Company is permitted by the terms of the Securities of the
applicable series to defer the payment in question, the date on which such
payment is due and payable shall be the date on which the Company is required
to make payment following such deferral, if such deferral has been elected
pursuant to the terms of the Securities of that series; or


 


(b) default in the payment of the principal of or
premium, if any, on any of the Securities of such series as, or any Additional Amounts
payable with respect thereto, and when the same shall become due and payable at
Maturity, and the time for payment of such principal (or premium, if any), or
any Additional Amounts payable with respect thereto, has not been extended;
provided, however, that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the Company
is required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series; or


 


(c) default in the performance or breach of any
other covenant or warranty of the Company in respect of the Securities of such
series (other than a covenant or warranty in respect of the Securities of such
series a default in whose performance or observance is elsewhere in this Section specifically
dealt with), and continuance of such default for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all series affected thereby,
a written notice specifying such default and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or


 


(d) default in the payment at Maturity of
Indebtedness of the Company in excess of $50,000,000 or if any event of default
as defined in any mortgage, indenture or instrument under which there may be
issued, or by which there may be secured or evidenced, any Indebtedness of the
Company (other than Indebtedness which is non-recourse to the Company) shall
happen and shall result in the acceleration of more than $50,000,000 in
principal amount of such Indebtedness (after giving effect to any applicable
grace period) and such default shall not be cured or waived or such
acceleration shall not be rescinded or annulled within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or event of default and requiring the
Company to cause such default to be cured or waived or to cause such
acceleration to be rescinded or annulled or to cause such Indebtedness to be
discharged and stating that such notice is a “Notice of Default” hereunder; or


 


34

















 


(e) the Company shall fail within 60 days to pay,
bond or otherwise discharge any uninsured judgment or court order for the
payment of money in excess of $50,000,000, which is not stayed on appeal or is
not otherwise being appropriately contested in good faith; or


 


(f) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or, under any such law, (i) appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of its property or (ii) ordering
the winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or


 


(g) the Company shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or, under any such law, (i) consent to the entry of
an order for relief in an involuntary case under any such law, (ii) consent
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or for
any substantial part of its property, or (iii) make any general assignment
for the benefit of creditors; or


 


(h) default in the performance or breach of the
conditions of Section 11.1 and Section 11.2, and the continuation of
such violation for 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of such series, a written notice specifying such failure to comply
and requiring it to be remedied and stating that such notice is a “Notice of
Default”; or


 


(i) any other Event of Default established by or
pursuant to a resolution of the Board of Directors or one or more indentures
supplemental hereto as applicable to the Securities of such series.


 


If an Event of Default described in clause (a), (b),
(c), (d), (e), (h) or (i) above occurs and is continuing with respect
to Securities of any series at the time Outstanding, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities of such
series then Outstanding, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms of such series) of
all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.


 


If any Event of Default described in clause (f) or
(g) above occurs and is continuing, all unpaid principal of the Securities
then Outstanding of that series and the interest accrued thereon, if any, shall
ipso facto become and be immediately due and payable without declaration,
presentment, demand or notice of any kind by the Trustee or any Holder of
Securities of that series.


 


35

















 


The foregoing provisions, however, are subject to the
condition that if, at any time after a declaration of acceleration with respect
to the Securities of any series has been made and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, and any
Additional Amounts with respect to all the Securities of such series (or upon
all the Securities, as the case may be) and the principal of (and premium, if
any, on) any and all Securities of such series (or of all the Securities, as
the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest or Additional Amounts, at the Overdue Rate applicable
to such series to the date of such payment or deposit) and all amounts payable
to the Trustee pursuant to the provisions of Section 7.6, and such amount
as shall be sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture, other than the
nonpayment of the principal of and accrued interest on and any Additional Amounts
with respect to Securities of such series which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein - then and in every such case the Holders of a majority in aggregate
principal amount of the Securities of such series (each series voting as a
separate class), or of all the Securities (voting as a single class), as the
case may be, then Outstanding, by written notice to the Company and to the
Trustee, may waive all defaults with respect to that series (or with respect to
all the Securities, as the case may be) and rescind and annul such acceleration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.


 


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


 


Section 6.2 Collection of Indebtedness by
Trustee; Trustee May Prove Debt.


 


The Company covenants that (a) in case default
shall be made in the payment of any installment of interest on or any
Additional Amounts with respect to any of the Securities of any series when
such interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of or any premium, if any, on
any Securities of any series or any Additional Amounts with respect thereto
when the same shall have become due and payable, whether upon Stated Maturity
of the Securities of such series or upon any redemption or by


 


36

















 


acceleration or otherwise, then upon demand of the
Trustee for such series, the Company will pay to the Trustee for the benefit of
the Holder of any such Security the whole amount that then shall have become due
and payable on any such Security for the principal, premium, if any, and
interest, if any, with interest upon the overdue principal and premium, if any,
and, so far as payment of the same is enforceable under applicable law, on
overdue installments of interest and Additional Amounts, at the Overdue Rate
applicable to any such Security; and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, and any
further amounts payable to the Trustee, its agents and counsel pursuant to the
provisions of Section 7.6.


 


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


 


The Trustee shall be entitled and empowered, either in
its own name as trustee of an express trust, or as attorney-in-fact for the
Holders of any of the Securities, or in both such capacities, to file such
proof of debt, amendment of proof of debt, claim, petition or other document as
may be necessary or advisable in order to have the claims of the Trustee and of
the Holders of Securities allowed in any equity receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or other similar
proceedings, or any judicial proceedings, relative to the Company or any other
obligor on the Securities or its creditors or its property. The Trustee is
hereby irrevocably appointed (and the successive respective Holders of the
Securities, by taking and holding the same, shall be conclusively deemed to
have so appointed the Trustee) the true and lawful attorney-in-fact of the
respective Holders of the Securities, with authority to make or file in the
respective names of the Holders of the Securities any proof of debt, amendment
of proof of debt, claim, petition or other document in any such proceedings and
to receive payment of any sums becoming distributable on account thereof, and
to execute any other papers and documents and do and perform any and all acts
and things for and on behalf of such Holders of the Securities as may be
necessary or advisable in the opinion of the Trustee in order to have the
respective claims of the Holders of the Securities against the Company or any
other obligor on the Securities and/or its property allowed in any such
proceedings, and to receive payment of or on account of such claims; provided,
however, that nothing herein contained shall be deemed to authorize or empower
the Trustee to consent to or accept or adopt, on behalf of any Holder of
Securities, any plan of reorganization or readjustment of the Company or any
other obligor on the Securities or, by other action of any character in any
such proceeding, to waive or change in any way any right of any Holder of any
Security, even though it may otherwise be entitled so to do under any present
or future law, all such power or authorization being hereby expressly denied.


 


37

















 


All rights of action and of asserting claims under
this Indenture or under any of the Securities may be enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the holders of the Securities in respect of which such
action was taken.


 


In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities in respect of which such action was taken,
and it shall not be necessary to make any Holders of such Securities parties to
any such proceedings.


 


Section 6.3 Application of Proceeds.


 


Any moneys collected by the Trustee pursuant to this Article in
respect of any series of the Securities, together with any other sums held by
the Trustee (as such) hereunder (other than sums held in trust for the benefit
of the Holders of particular 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 any premium, interest
or Additional Amounts, upon presentation (except in respect of Subdivision
First below) of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:


 


FIRST: To the payment of costs and expenses applicable
to such series in respect of which moneys have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 7.6;


 


SECOND: In case the principal of the Securities of
such series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest and any
Additional Amounts on the Securities of such series in default in the order of
the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee), so far as it may be
enforceable under applicable law, upon the overdue installments of interest and
any Additional Amounts at the Overdue Rate applicable to such series, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;


 


THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have become and
shall be then due and payable, to the


 


38

















 


payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and premium, if any, and
interest, if any, and any Additional Amounts, with interest upon the overdue
principal and premium, if any, and (to the extent that such interest has been
collected by the Trustee), so far as payment of the same is enforceable under
applicable law, upon overdue installments of interest and any Additional
Amounts, if any, at the Overdue Rate applicable to such series; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such
principal, premium, if any, and interest, if any, and any Additional Amounts,
without preference or priority of principal and premium, if any, over interest
or any Additional Amounts, or of interest or any Additional Amounts, if any,
over principal and premium, if any, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal, premium,
if any, and accrued and unpaid interest, if any; and


 


FOURTH: To the payment of the remainder, if any, to
the Company or as a court of competent jurisdiction may direct in writing.


 


Section 6.4 Suits for Enforcement.


 


In case an Event of Default with respect to Securities
of any series has occurred, has not been waived and is continuing, 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 necessary 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 this 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.


 


Section 6.5 Restoration of Rights on Abandonment
of Proceedings.


 


In case the Trustee or any Holder shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or such Holder, then and in every such case (subject
to the binding effect of any determination made in such proceedings) the
Company and the Trustee and each of the Holders shall be restored severally and
respectively to their former positions and rights hereunder, and (subject as
aforesaid) all rights, remedies and powers of the Company, the Trustee and the
Holders shall continue as though no such proceedings had been instituted.


 


Section 6.6 Limitations on Suits by
Securityholders.


 


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
an action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a
trustee, receiver, liquidator, custodian or other similar official or for any
other remedy


 


39

















 


hereunder, unless such Holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, and unless also 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 or proceeding in its own name as Trustee hereunder and
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 the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and
no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 6.9; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every
other taker and Holder of any Security and with the Trustee, that no one or
more Holders of Securities of any series shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of 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 Holder of Securities of any series and the Trustee
shall be entitled to such relief as can be given either at law or in equity.


 


Section 6.7 Unconditional Right of
Securityholders to Institute Certain Suits.


 


Nothing contained in this Indenture or in the
Securities of any series shall affect or impair the obligation of the Company,
which is unconditional and absolute, to pay the principal of, and premium, if
any, and interest, if any, on, and any Additional Amounts with respect to, the
Securities of such series at the respective places, at the respective times, at
the respective rates, in the respective amounts and in the coin or currency
therein and herein prescribed, or affect or impair the right of action, which
is also absolute and unconditional, of any Holder of any Security to institute
suit to enforce such payment at the respective due dates expressed in such
Security, or upon redemption, by declaration, repayment or otherwise as herein
provided without reference to, or the consent of, the Trustee or the Holder of
any other Security, unless such Holder consents thereto or unless and to the
extent that the institution or prosecution.


 


Section 6.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default.


 


Except as provided in Section 6.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holder of any
Security is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


40
















 


No delay or omission of the Trustee or of any Holder
of any Security of any series 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 Event of
Default or an acquiescence therein; and, subject to Section 6.6, every
power and remedy given by this Indenture or by law to the Trustee or to the
Holder of any Security may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holder of such Security.


 


Section 6.9 Control by Holders of Securities.


 


The Holders of a majority in aggregate principal
amount of the Securities of each series affected (with each series voting as a
separate class) at the time Outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture, and provided, further, that (subject to the provisions of Section 7.1)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by a trust committee of directors or Responsible Officers of the Trustee
shall determine that the action or proceedings so directed would expose the
Trustee to personal liability or if the Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 7.1) the Trustee
shall have no duty to ascertain whether or not such actions or forebearances
are unduly prejudicial to such Holders.


 


As between the Trustee and the Holders of the
Securities, nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.


 


Section 6.10 Waiver of Past Defaults.


 


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


 


(1) in the payment of the principal of, any
premium or interest on, or any Additional Amounts with respect to, any Security
of such series, or


 


(2) in respect of a covenant or provision hereof
which under ARTICLE 11 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.


 


41

















 


Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.


 


Section 6.11 Trustee to Give Notice of Default,
But May Withhold in Certain Circumstances.


 


The Trustee shall transmit to the Securityholders of
any series, as the names and addresses of such Holders appear on the Security
Register, notice by mail of all defaults known to a Responsible Officer of the
Trustee which have occurred with respect to such series, such notice to be
transmitted within 60 days after the occurrence thereof, unless such defaults
shall have been cured before the giving of such notice (the term “default” or
“defaults” for the purposes of this Section being hereby defined to mean
any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of, or premium, if any, or interest, if any, on,
or any Additional Amounts with respect to, any of the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as a trust committee of directors or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests
of the Securityholders of such series.


 


Section 6.12 Right of Court to Require Filing of
Undertaking to Pay Costs.


 


The parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; 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 of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series Outstanding, or,
in the case of any suit relating to or arising under Section 6.1(c) or
Section 6.1(i) (if the suit relates to Securities of more than one but
fewer than all series), 10% in aggregate principal amount of Securities
Outstanding affected thereby, or, in the case of any suit relating to or
arising under Section 6.1(c) or Section 6.1(i) (if the suit
under clause (d) or (g) relates to all the Securities then
Outstanding), Section 6.1(f) or Section 6.1(g), 10% in aggregate
principal amount of all Securities Outstanding, or to any suit instituted by
any Holder of Securities for the enforcement of the payment of the principal
of, or premium, if any, or interest, if any, on, any Security on or after the
due date expressed in such Security.


 


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Section 6.13 Waiver of Usury, Stay or Extension
Laws.


 


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


 


Section 6.14 Delay or Omission Not Waiver.


 


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


 


ARTICLE
7

CONCERNING THE TRUSTEE


 


Section 7.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default.


 


With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of that series and after the curing
or waiving of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived), the Trustee shall exercise 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.


 


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:


 


(a) prior to the occurrence of an Event of
Default with respect to the Securities of such series and after the curing or
waiving of all such Events of Default with respect to such series which may have
occurred:


 


(i) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the


 


43

















 


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


 


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


 


(b) 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; and


 


(c) 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 Securities pursuant to Section 6.9
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.


 


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 it shall have reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.


 


Section 7.2 Certain Rights of the Trustee.


 


Subject
to Section 7.1:


 


(a) the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution, Officer’s
Certificate or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon, security or
other paper or document (whether in original or facsimile form) 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 an Officer’s
Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary or any assistant
secretary of the Company;


 


(c) the Trustee may consult with counsel of its
own selection and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any


 


44

















 


action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;


 


(d) the Trustee shall be under no obligation to
exercise any of the trusts 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 satisfactory to it against the
costs, expenses and liabilities which might be incurred therein or thereby;


 


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


 


(f) prior to the occurrence of an Event of
Default hereunder and after the curing or waiving of all Events of Default, 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, appraisal, bond, debenture, note,
coupon, security or other paper or document unless requested in writing so to
do by the Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then Outstanding; provided 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
indemnity reasonably satisfactory to it against such expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand;


 


(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 not regularly in its employ, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder;


 


(h) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine during reasonable hours and upon reasonable notice the
books, records and premises of the Company, personally or by agent or attorney;


 


(i) the Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the


 


45

















 


Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture; and


 


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


 


Section 7.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.


 


The recitals contained herein and in the Securities,
except the certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.


 


Section 7.4 Trustee and Agents May Hold
Securities; Collections, etc.


 


The Trustee, any Paying Agent, Securities Registrar,
Authenticating Agent or any agent of the Company or the Trustee, 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 the Trustee or such agent,
and, subject to Section 7.8 and Section 7.13, if operative, may
otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such
agent.


 


Section 7.5 Moneys Held by Trustee.


 


Subject to the provisions of Section 12.3, 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 mandatory
provisions of law. The Trustee shall have no liability for interest on money it
receives and holds in trust except as specifically provided herein.


 


Section 7.6 Compensation and Indemnification of
Trustee and Its Prior Claim.


 


The Company covenants and agrees to pay the Trustee
from time to time, and the Trustee shall be entitled to such compensation as
the Company and the Trustee may from time to time agree in writing for all services
rendered by the Trustee hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Company covenants and agrees to pay or reimburse the Trustee and
each


 


46

















 


predecessor trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it 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 agents and other Persons not regularly in its employ)
except any such expense, disbursement or advance as shall be attributable to
its negligence or bad faith. The Company also covenants to indemnify the
Trustee and each predecessor trustee for, and hold it harmless against, any
loss, liability, damage, claims or expense, including taxes (other than taxes
measured by the income of the Trustee or otherwise applicable to the Trustee
for operations outside the scope of this Indenture) incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance
or administration of this Indenture or the trusts hereunder and the performance
of its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder except to the extent
that any such loss, liability, damage, claims or expense shall be attributable
to the Trustee’s negligence or bad faith. The obligations of the Company under
this Section to compensate and indemnify the Trustee and each predecessor
trustee and to pay or reimburse the Trustee and each predecessor trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture
and resignation or removal of the Trustee. Such additional indebtedness shall
be 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.


 


Section 7.7 Right of Trustee to Rely on Officer’s
Certificate, etc.


 


Subject to Section 7.1 and Section 7.2,
whenever in the administration of the trusts 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 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 Officer’s 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 by it under the provisions of this
Indenture upon the good faith thereof.


 


Section 7.8 Qualification of Trustee; Conflicting
Interests.


 


The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time provided for therein. In
determining whether the Trustee has a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to the Securities of any series, there
shall be excluded this Indenture with respect to Securities of any particular
series of Securities other than that series. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of Section 310(b) of the Trust Indenture Act.


 


47

















 


Section 7.9 Persons Eligible for Appointment as
Trustee.


 


There shall at all times be a Trustee hereunder for
each series of Securities, which shall be at all times either:


 


(a) a corporation organized and doing business
under the laws of the United States of America or of any State or territory or
the District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal, State,
territory or District of Columbia authority; or


 


(b) a corporation or other Person organized and
doing business under the laws of a foreign government that is permitted to act
as Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees, in either case
having a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law
or to requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 7.9, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee for the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section 7.9, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as Trustee
for the Securities of any series issued hereunder.


 


Section 7.10 Resignation and Removal; Appointment
of Successor Trustee.


 


(a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign by giving written notice of
resignation to the Company and by mailing notice thereof by first-class mail to
Holders of the Securities at their last addresses as they shall appear on the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. 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 at the expense
of the Company any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities for at least six months may, subject to the provisions
of Section 6.12, 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 of the following
shall occur:


 


48

















 


(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act 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 unless the
Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of
the Trust Indenture Act; or


 


(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.9 and shall fail to resign
after written request therefor by the Company or by any Securityholder; or the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent; or a receiver or liquidator of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation; then, in any case, the Company may remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.12, any Securityholder 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 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 at the time Outstanding may at any time
remove the Trustee and appoint a successor trustee by delivering to the Trustee
so removed, to the successor trustee so appointed and to the Company the
evidence provided for in Section 8.1 of the action in that regard taken by
the Securityholders.


 


(d) No resignation or removal of the Trustee and
no appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective until acceptance of appointment by the
successor trustee as provided in Section 7.11.


 


Section 7.11 Acceptance of Appointment by
Successor Trustee.


 


Any successor trustee appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
hereunder; but nevertheless, on the written request of the Company or of the
successor trustee, upon payment of all amounts due to the Trustee under Section 7.6,
the Trustee ceasing to act shall, subject to Section 4.4, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and


 


49

















 


obligations. Upon request of any successor trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any Trustee ceasing to act, shall, nevertheless, retain a prior
lien upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 7.6.


 


No successor trustee shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 7.8
and eligible under the provisions of Section 7.9.


 


Upon acceptance of appointment by any successor
trustee as provided in this Section 7.11, the Company shall mail notice
thereof by first-class mail to the Holders of Securities at their last
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 7.10. If the Company fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.


 


Section 7.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee.


 


Any corporation in 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 substantially all of 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 7.8
and eligible under the provisions of Section 7.9, without the execution or
filing of any paper or any further act (including the giving of any notice to
Securityholders) on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.


 


In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of the Securities
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities or
in this Indenture provided for the certificate of authentication of the
Trustee.


 


Section 7.13 Preferential Collection of Claims
Against the Company.


 


(a) Subject to the provisions of this Section, if
the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or any other obligor of the Securities
within three months prior to a default, as defined in Section 7.13(c), or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and


 


50

















 


hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and the holders of other
indenture securities (as defined in this Section):


 


(i) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three months’
period and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any property
described in Section 7.13(a)(ii), or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such default; and


 


(ii) all property received by the Trustee in
respect of any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning of such
three months’ period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Company and its
other creditors in such property or such proceeds.


 


Nothing herein contained, however, shall affect the
right of the Trustee:


 


(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other than the Company) who is
liable thereon, (ii) the proceeds of a bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the Company in
bankruptcy or receivership or in the proceedings for reorganization pursuant to
the Federal Bankruptcy Code or applicable state law;


 


(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such property was so
held prior to the beginning of such three months’ period;


 


(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the beginning of
such three months’ period and such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received the Trustee has no
reasonable cause to believe that a default as defined by Section 7.13(c) would
occur within three months; or


 


(D) to receive payment on any claim referred to
in paragraph (B) or (C) above, against the release of any property
held as security for such claim as provided in such paragraph (B) or (C),
as the case may be, to the extent of the fair value of such property.


 


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For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three months’ period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose
of repaying or refunding any pre-existing claim of the Trustee as such creditor,
such claim shall have the same status as such pre-existing claim.


 


If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Holders of the Securities and the holders
of other indenture securities in such manner that the Trustee, such Holders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable state law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee, Holders of the Securities and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable state law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term “dividends” shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable state law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee, the Holders of Securities and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof; or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee, the Holders of Securities and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distribution as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.


 


Any Trustee who has resigned or been removed after the
beginning of such three months’ period shall be subject to the provisions of
this Section 7.13(a) as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the beginning of
such three months’ period, it shall be subject to the provisions of this Section 7.13(a) if
and only if the following conditions exist:


 


52

















 


(E) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three months’
period; and


 


(F) such receipt of property or reduction of
claim occurred within three months after such resignation or removal.


 


(b) There shall be excluded from the operation of
this Section a creditor relationship arising from:


 


(i) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;


 


(ii) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this Indenture for the purpose
of preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Holders of the applicable series of Securities
at the time and in the manner provided in this Indenture;


 


(iii) disbursements made in the ordinary course
of business in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or other
similar capacity;


 


(iv) an indebtedness created as a result of
services rendered or premises rented or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in Section 7.13(c)(iii);


 


(v) the ownership of stock or of some other
securities of a corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or indirectly a creditor
of the Company; or


 


(vi) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in Section 7.13(c)(iv).


 


(c) As used in this Section:


 


(i) the term “default” shall mean any failure to
make payment in full of the principal of or interest upon any of the Securities
of the applicable series or upon the other indenture securities when and as
such principal or interest becomes due and payable;


 


(ii) the term “other indenture securities” shall
mean securities upon which the Company is an obligor (as defined in the Trust
Indenture Act) outstanding under any


 


53

















 


other indenture (i) under which the Trustee is
also trustee, (ii) which contains provisions substantially similar to the
provisions of Section 7.13(a), and (iii) under which a default exists
at the time of the apportionment of the funds and property held in said special
account;


 


(iii) the term “cash transaction” shall mean any
transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;


 


(iv) the term “self-liquidating paper” shall mean
any draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon the goods, wares or merchandise or the receivables or
proceeds arising from the sale of goods, wares or merchandise previously
constituting the security, provided that the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation; and


 


(v) the term “Company” shall mean any obligor
upon the Securities.


 


Section 7.14 Authenticating Agent.


 


So long as any Securities remain Outstanding, if the
Corporate Trust Office of the Trustee is not located in the Borough of
Manhattan, The City of New York, or otherwise upon a Company Request, there
shall be an authenticating agent (the “Authenticating Agent”) appointed, for
such period as the Company shall elect, by the Trustee to act as its agent on
its behalf and subject to its direction in connection with the authentication
and delivery of Securities. Securities authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or to the Trustee’s Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or of
the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
authority. If the Corporate Trust Office of the Trustee is not located in the
Borough of Manhattan, The City of New York, the Authenticating Agent shall have
its principal office and place of business in the Borough of Manhattan, The
City of New York.


 


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Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.


 


Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time terminate
the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.14, the Trustee shall upon Company Request
appoint a successor Authenticating Agent, and the Company shall provide notice
of such appointment to all Holders of Securities in the manner and to the
extent provided in Section 14.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein. The Company
agrees to pay or to cause to be paid to the Authenticating Agent from time to
time reasonable compensation for its services. The Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in good
faith at the direction of the Trustee.


 


ARTICLE
8

CONCERNING THE HOLDERS OF SECURITIES


 


Section 8.1 Action by Holders.


 


Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Securities of any 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 specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by
Holders in Person or by agent or proxy appointed in writing, or (b) by the
record of Holders voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of ARTICLE 9, or (c) by
a combination of such instrument or instruments and any such record of such a
meeting of Holders. The Company may (but shall not be required to) set a record
date for purposes of determining the identity of Securityholders entitled to
vote or consent to any action by vote or consent authorized or permitted under
this Indenture, which record date shall be the later of 10 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 5.1 of this Indenture
prior to such solicitation. If a record date is fixed, those Persons who were
Securityholders at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to take such action by vote or


 


55

















 


consent or to revoke any vote or consent previously
given, whether or not such Persons continue to be Holders after such record
date.


 


Section 8.2 Proof of Execution of Instruments by
Holders of Securities.


 


Subject to Section 7.1, Section 7.2 and Section 9.5,
the execution of any instrument by a Holder of a Security or his agent or proxy
may be proved in any reasonable manner that the Trustee deems sufficient,
including, without limitation, in the following manner:


 


The fact and date of the execution by any such Person
of any instrument may be proved by the certificate of any notary public or
other officer authorized to take acknowledgments of deeds, that the Person
executing such instrument acknowledged to him the execution thereof, or by an
affidavit or written statement of a witness to such execution. Where such
execution is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, as the
case may be, or by any other Person acting in a representative capacity, such
certificate, affidavit or written statement shall also constitute sufficient
proof of his authority.


 


The ownership of Securities shall be proved by the
Securities Register or by a certificate of the Securities Registrar.


 


The record of any Holders’ meeting shall be proved in
the manner provided in Section 9.6.


 


Section 8.3 Holders to be Treated as Owners.


 


The Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the Person in whose name any Security shall
be registered upon the Security Register as the absolute owner of such Security
(notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of principal of, and premium, if any, and (subject
to Section 3.6 and Section 3.8) interest, if any, on, such Security,
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary. All such payments so made
to any Holder for the time being, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon such Security.


 


None of the Company, the Trustee or any agent of the
Company or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company or the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by any Depository (or its nominee), as a Holder, with
respect to such Global Security or impair, as between such Depository and
owners of beneficial interests in such Global Security, the operation of


 


56

















 


customary practices governing the exercise of the
right of such Depository (or its nominee) as holder of such Global Security.


 


Section 8.4 Securities Owned by Company Deemed
Not Outstanding.


 


In determining whether the Holders of the requisite
aggregate principal amount of Securities of any or all series have concurred in
any direction, consent or waiver under this Indenture, Securities which are
owned by the Company or any other obligor on the Securities with respect to
which such determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities with respect to which such
determination is being made 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 which a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of any of the above-described
Persons; and, subject to Section 7.1 and Section 7.2, the Trustee
shall be entitled to accept such Officer’s Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.


 


Section 8.5 Right of Revocation of Action Taken.


 


At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.1, of the taking of any action by
the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action, any Holder of a Security, the number, letter or
other distinguishing symbol of which 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 at the Corporate Trust Office and upon proof of holding
as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security or such other Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Securities affected by such
action.


 


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ARTICLE
9

HOLDERS’ MEETINGS


 


Section 9.1 Purposes of Meetings.


 


A meeting of Holders of Securities of any or all
series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:


 


(a) to give any notice to the Company or to the
Trustee for the Securities of such series, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of ARTICLE 6;


 


(b) to remove the Trustee and nominate a
successor Trustee pursuant to the provisions of ARTICLE 7;


 


(c) to consent to the execution of an indenture
or indentures supplemental hereto pursuant to the provisions of Section 10.2;
or


 


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


 


Section 9.2 Call of Meetings by Trustee.


 


The Trustee may at any time call a meeting of Holders
of Securities to take any action specified in Section 9.1, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
or such other Place of Payment, as the Trustee shall determine. Notice of every
meeting of the Holders of Securities, setting forth the time and the place of
such meeting, and in general terms the action proposed to be taken at such
meeting, shall be given to Holders of Securities of the particular series in
the manner and to the extent provided in Section 14.4. Such notice shall
be given not less than 20 nor more than 90 days prior to the date fixed for the
meeting.


 


Section 9.3 Call of Meetings by Company or
Holders.


 


In case at any time the Company, pursuant to a
resolution of its Board of Directors, or the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities of any or all series, as the
case may be, shall have requested the Trustee to call a meeting of Holders of
Securities of any or all series, as the case may be, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee for such series shall not have given the notice of such meeting
within 20 days after receipt of such request, then the Company or such Holders
may determine the time and the place in the Borough of Manhattan or other Place
of Payment for such meeting and may call such meeting to take any action
authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.


 


58

















 


Section 9.4 Qualifications for Voting.


 


To be entitled to vote at any meeting of Holders a
Person shall be (a) a Holder of one or more outstanding Securities with
respect to which such meeting is being held or (b) a Person appointed by
an instrument in writing as proxy by such Holder. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.


 


Section 9.5 Regulations.


 


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


 


The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section 9.3,
in which case the Company or the Holders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by majority vote of the
meeting.


 


Subject to Section 8.4, at any meeting each
Holder of Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition of “Outstanding”) of Securities held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any such Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities held by
him or instruments in writing aforesaid duly designating him as the Person to
vote on behalf of other Holders. At any meeting of Holders, the presence of
Persons holding or representing Securities with respect to which such meeting
is being held in an aggregate principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute
a quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in aggregate principal amount of such Securities
represented at the meeting may adjourn such meeting with the same effect, for
all intents and purposes, as though a quorum had been present. Any meeting of
Holders of Securities with respect to which a meeting was duly called pursuant
to the provisions of Section 9.2 or Section 9.3 may be adjourned from
time to time by Persons holding or representing a majority in aggregate
principal amount of such Securities represented at the meeting, present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.


 


59

















 


Section 9.6 Voting.


 


The vote upon any resolution submitted to any meeting
of Holders of Securities with respect to which such meeting is being held shall
be by written ballots on which shall be subscribed the signatures of such
Holders or of their representatives by proxy and the serial number or numbers
of the Securities held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 9.2. The
record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.


 


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


 


Section 9.7 No Delay of Rights by Reason of
Meeting.


 


Nothing in this Article contained shall be deemed
or construed to authorize or permit, by reason of any call of a meeting of
Holders or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders under any of the provisions
of this Indenture or of the Securities of any series.


 


ARTICLE
10

SUPPLEMENTAL INDENTURES


 


Section 10.1 Supplemental Indentures Without
Consent of Securityholders.


 


Without the consent of any Holders of Securities, the
Company, when authorized by a resolution of its Board of Directors, 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 in force at the date of the execution thereof) for one
or more of the following purposes:


 


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


 


(b) to evidence the succession of another Person
to the Company, or successive successions, and the assumption by the successor
Person of the covenants, agreements and


 


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obligations of the Company under this Indenture and
the Securities, in each case in compliance with the Indenture;


 


(c) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions as its Board of
Directors shall consider to be for the protection of the Holders of any series
of Securities or Tranche thereof, or to surrender any right or power herein
conferred upon the Company and to make the occurrence and continuance of a default
in any such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an Event
of Default;


 


(d) to cure any ambiguity or to correct or
supplement any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under any
supplemental indenture as the Board of Directors may deem necessary or
desirable and which shall not materially adversely affect the interests of the
Holders of any Securities;


 


(e) to establish the form or terms of Securities
of any series as permitted by Section 3.1;


 


(f) to provide for the issuance under this
Indenture of Securities in coupon form (including Securities registrable as to
principal only), to provide for interchangeability thereof with Securities in
registered form of the same series and to make all appropriate changes for such
purpose, or to permit or facilitate the issuance of Securities of any series in
uncertificated form provided any such action shall not adversely affect the
interests of the Holders of Outstanding Securities of any series in any
material respect;


 


(g) 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, as herein set
forth;


 


(h) to add any additional Events of Default with
respect to all or any series of Securities (as shall be specified in such
supplemental indenture);


 


(i) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to ARTICLE 12,
provided that any such action shall not adversely affect the interests


 


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of any Holder of an Outstanding Security of such
series or any other Outstanding Security in any material respect;


 


(j) to make provisions with respect to conversion
or exchange rights of Holders of Securities of any series;


 


(k) to provide for the issuance under this
Indenture of Securities denominated or payable in currency other than Dollars
and to make all appropriate changes for such purpose;


 


(l) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the Securities,
pursuant to Section 7.11, or to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;


 


(m) to modify any restrictions on and procedures
for resales of Securities of any series that is not registered pursuant to the
Securities Act to reflect any change in applicable law or regulation (or the
interpretation thereof) or in practices relating to the resale or transfer of restricted
securities generally and to modify any legends placed on such Securities to
reflect such restrictions and procedures;


 


(n) to add to or change or eliminate any
provision of this Indenture as shall be necessary or desirable to conform to
provisions of the Trust Indenture Act as at the time in effect, provided that
such action shall not materially adversely affect the interests of the Holders
of the Securities of any series; and


 


(o) otherwise to amend or supplement any of the
provisions of this Indenture or in any supplemental indenture; provided,
however, that no such amendment or supplement shall materially adversely affect
the interests of the Holders of any Securities then Outstanding.


 


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


 


Any supplemental indenture authorized by the
provisions of this Section may be executed without the consent of the
Holders of any of the Securities at the time Outstanding, notwithstanding any
of the provisions of Section 10.2.


 


Section 10.2 Supplemental Indentures With Consent
of Securityholders.


 


With the consent (evidenced as provided in ARTICLE 8)
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Company, when authorized by a resolution
of its Board of Directors, and the Trustee may, from time to time and at any


 


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time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of execution thereof) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of the Securities of each such series;
provided that no such supplemental indenture shall (a) change the Stated
Maturity of the principal of, or any premium or installment of interest on or
any Additional Amounts with respect to, any Security of such series, or reduce
the principal amount thereof (or modify the calculation of such principal
amount) or rate of interest thereon or any Additional Amounts with respect
thereto (or modify the calculation of such rate), or any premium payable on
redemption thereof or otherwise, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration with respect thereto pursuant to Section 6.1 or the amount
thereof provable in bankruptcy pursuant to Section 6.2, or change the
obligation of the Company to pay Additional Amounts pursuant to Section 4.4
(except as contemplated by Section 11.1 and permitted by Section 10.1),
or change the redemption provisions, or change the Place of Payment, currency
in which the principal of, any premium or interest on, or any Additional
Amounts with respect to any security is payable, or impair or adversely affect
the right of any Securityholder to institute suit for the payment thereof or,
if the Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security of such
series so affected; or (b) reduce the aforesaid percentage of the
principal amount of Securities Outstanding of such series, the consent of the
Holders of which is required for any such supplemental indenture or any waiver
of any obligations of the Company under this Indenture, without the consent of
the Holders of each Security of such series so affected, or reduce the
requirements for quorum on voting; or (c) modify any of the provisions of
this Indenture relating to the subordination of the Securities in a manner
adverse to Holders of Securities; or (d) modify any of the provisions this
Section, Section 6.10 or Section 4.7, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified without the consent of the Holder of each Outstanding Security
thereby.


 


Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section 8.1,
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.


 


It shall not be necessary for the consent of the
Securityholders 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.


 


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


 


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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.


 


Section 10.3 Notice of Supplemental Indenture.


 


Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of Section 10.2,
the Company shall mail a notice thereof by first-class mail to the Holders of
Securities of each series affected thereby at their addresses as they shall
appear on the Security Register, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.


 


Section 10.4 Effect of Supplemental Indenture.


 


Upon the execution of any supplemental indenture
pursuant to the provisions of this Article, this Indenture shall be and be
deemed to be modified and amended in accordance therewith, but only with regard
to the Securities of each series affected by such supplemental indenture, and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the Holders of
any Securities of such 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 with regard to the Securities of such
series.


 


Section 10.5 Documents To Be Given to Trustee.


 


The Trustee, subject to the provisions of Section 7.1
and Section 7.2, shall be provided with an Officer’s Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article complies with the applicable provisions
of this Indenture and is authorized or permitted by this Indenture.


 


Section 10.6 Notation on Securities in Respect of
Supplemental Indentures.


 


Securities of any series affected by any supplemental
indenture which are authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article may bear
a notation in form approved by the Company and the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
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 such series then
Outstanding.


 


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ARTICLE 11

CONSOLIDATION, AMALGAMATION, MERGER OR SALE


 


Section 11.1 Company May Consolidate, Etc.,
Only on Certain Terms.


 


The Company shall not consolidate or amalgamate with
or merge into any other Person (whether or not affiliated with the Company), or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any other Person (whether or not affiliated with
the Company), and the Company shall not permit any other Person (whether or not
affiliated with the Company) to consolidate or amalgamate with or merge into
the Company or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to the Company, unless:


 


(a) in case the Company shall consolidate or
amalgamate with or merge into another Person or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
Person, the Person formed by such consolidation or amalgamation or into which
the Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company as an entirety or
substantially as an entirety shall be a Corporation or limited liability
company organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia, Bermuda, or any other country
(including under the laws of any state, province or other political subdivision
thereof) which is on the date of this Indenture a member of the Organization
for Economic Cooperation and Development, and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and delivered to the
Trustee the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Securities and
the performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed and shall
provide for conversion or exchange rights in accordance with the provisions of
the Securities of any series that are convertible or exchangeable into Common
Stock or other securities; and


 


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


 


Section 11.2 Opinion of Counsel.


 


Either the Company or the successor Person shall
deliver to the Trustee prior to the proposed transaction(s) covered by Section 11.1
an Officer’s Certificate and an Opinion of Counsel stating that the transaction(s) and
such supplemental indenture are authorized and


 


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permitted by this Indenture and that all conditions
precedent to the consummation of the transaction(s) under this Indenture
have been met.


 


Section 11.3 Successor Person Substituted.


 


Upon any consolidation or amalgamation by the Company
with or merger of the Company into any other Person or any lease, sale,
assignment, or transfer of all or substantially all of the property and assets
of the Company in accordance with Section 11.1, the successor Person
formed by such consolidation or amalgamation or into which the Company is
merged or the successor Person or affiliated group of Persons to which such
lease, sale, assignment, or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person or Persons had
been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person or Persons shall be relieved of all obligations
and covenants under this Indenture and the Securities and in the event of such
conveyance or transfer, except in the case of a lease, any such predecessor
Person may be dissolved and liquidated.


 


ARTICLE
12

SATISFACTION AND DISCHARGE OF INDENTURE,

UNCLAIMED MONEYS


 


Section 12.1 Satisfaction and Discharge of
Securities of Any Series.


 


The Company shall be deemed to have satisfied and
discharged this Indenture with respect to the entire indebtedness on all the
Outstanding Securities of any particular series, and the Trustee, at the
expense of the Company and upon Company Request, shall execute proper
instruments acknowledging such satisfaction and discharge, when


 


(a) either:


 


(i) all Outstanding Securities of such series
theretofore authenticated and delivered (other than (i) any Securities of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.7 and (ii) Outstanding
Securities of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section 12.3)
have been delivered to the Trustee for cancellation; or


 


(ii) all Outstanding Securities of such series
described in sub-clause (i) above (other than the Securities referred to
in the parenthetical phrase thereof) not theretofore delivered to the Trustee
for cancellation:


 


(x) have become due and payable;


 


(y) will become due and payable at their Stated
Maturity within one year; or


 


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(z) if redeemable at the option of the Company or
pursuant to the operation of a sinking fund, are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Company; and


 


(A) the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust an
amount (except as otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay and discharge the entire
indebtedness on all such Outstanding Securities of such series, not therefore
delivered to the Trustee for cancellation, including the principal of, any
premium and interest on, and any Additional Amounts with respect to such
Securities (based upon applicable law as in effect on the date of such
deposit), to the date of such deposit (in the case of Securities which have
become due and payable) or to the Maturity thereof, as the case may be;


 


(B) the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as obligations in trust
such amount of Government Obligations as will, in a written opinion of
independent public accountants delivered to the Trustee, together with the
predetermined and certain income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series for unpaid
principal (and premium, if any), interest on, and any Additional Amounts to the
date of such deposit (in the case of Securities which have become due and
payable) or Maturity thereof, as the case may be;


 


(b) the Company has paid or caused to be paid all
other sums payable with respect to the Outstanding Securities of such series
including all fees due to the Trustee under Section 7.6;


 


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


 


(d) if the Securities of such series are not to
become due and payable at their Stated Maturity within one year of the date of
such deposit or are not to be called for redemption within one year of the date
of such deposit under arrangements satisfactory to the Trustee as of the date
of such deposit, then the Company shall have given, not later than the date of
such deposit, notice of such deposit to the Holders of the Securities of such
series.


 


Upon the satisfaction of the conditions set forth in
this Section 12.1 with respect to all the Outstanding Securities of any
series, the terms and conditions with respect thereto set forth in this
Indenture shall no longer be binding upon, or applicable to, the Company; provided,
however, that the Company shall not be discharged from (a) any obligations
under Section 7.6


 


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and Section 7.10 and (b) any obligations
under Section 3.6, Section 3.7, Section 5.1 and Section 12.3
and (c) any obligations under Section 4.4, with respect to the
payment of any Additional Amounts, if any, (but only to the extent that the
Additional Amounts payable with respect to any Outstanding Securities of such
series exceed the amount deposited in respect of such Additional Amounts
pursuant to Section 12.1(a)(ii)); and provided, further, that in the event
a petition for relief under the Federal Bankruptcy Code or a successor statute
is filed with respect to the Company within 91 days after the deposit, this
Indenture with respect to the entire indebtedness on all Securities of such
series shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon
Company Request.


 


Section 12.2 Defeasance and Covenant Defeasance.


 


(a) Unless pursuant to Section 3.1, either
or both of (i) defeasance of the Securities of or within a series under
clause (b) of this Section 12.2 shall not be applicable with respect
to the Securities of such series or (ii) covenant defeasance of the
Securities of or within a series under clause (c) of this Section 12.2
shall not be applicable with respect to the Securities of such series, then
such provisions, together with the other provisions of this Section 12.2 (with
such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and the
Company may at its option by Board Resolution, at any time, with respect to
such Securities, elect to have Section 12.2(b) or Section 12.2(c) be
applied to such Outstanding Securities upon compliance with the conditions set
forth below in this Section 12.2.


 


(b) Upon the Company’s exercise of the above
option applicable to this Section 12.2(b) with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities on
the date the conditions set forth in clause (d) of this Section 12.2
are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by such Outstanding Securities which shall thereafter
be deemed to be “Outstanding” only for the purposes of clause (c) of this Section 12.2
and the other Sections of this Indenture referred to in clauses (i) and (ii) below,
and to have satisfied all of its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such Outstanding
Securities, solely from the trust fund described in clause (d) of this Section 12.2
and as more fully set forth in such clause, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities when such payments are due,
and any rights of such Holder to convert such Securities into Common Stock of
the Company or exchange such Securities for other securities; (ii) the
obligations of the Company and the Trustee with respect to such Securities
under Sections 3.6, 3.7, 4.2, 4.3 and 12.3 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 4.4
(but only to the extent that the Additional Amounts payable with respect to
such Securities exceed the amount deposited in respect of such Additional
Amounts


 


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pursuant to Section 12.2(d)(i) below), and
with respect to any rights to convert such Securities into Common Stock of the
Company or exchange such Securities for other securities; (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
including, without limitation, the compensation, reimbursement and indemnities
provided in Section 7.6 herein; and (iv) this Section 12.2. The
Company may exercise its option under this Section 12.2(b) notwithstanding
the prior exercise of its option under clause (c) of this Section 12.2
with respect to such Securities.


 


(c) Upon the Company’s exercise of the option to
have this Section 12.2(c) apply with respect to any Securities of or
within a series, the Company shall be released from its obligations in respect
of any other covenant applicable to such Securities, with respect to such
Outstanding Securities on and after the date the conditions set forth in clause
(d) of this Section 12.2 are satisfied (hereinafter, “covenant
defeasance”), and such Securities shall thereafter be deemed to be not
“Outstanding” for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with any
such covenant or obligation, but shall continue to be deemed “Outstanding” for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities, the Company may omit to
comply with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such Section or such other covenant or
obligation, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or obligation
or by reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 6.1
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.


 


(d) The following shall be the conditions to
application of clause (b) or (c) of this Section 12.2 to any
Outstanding Securities of or within a series:


 


(i) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.8 who shall agree to comply with the provisions
of this Section 12.2 applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities, (1) an
amount in Dollars or in such Foreign Currency in which such Securities are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities (determined on the basis of the Currency in which
such Securities are then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment with respect to such Securities, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the


 


69

















 


principal of (and premium, if any) and interest, if
any, on, and any Additional Amounts with respect to such Securities (based upon
applicable law as in effect on the date of such deposit), such Outstanding
Securities at the Stated Maturity or Redemption Date of such principal or
installment of principal or premium or interest and (z) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities on the days on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and, if applicable,
shall have made irrevocable arrangements satisfactory to the Trustee for the
redemption of any Securities to be redeemed at the option of the Company in
connection with such deposit.


 


(ii) No Event of Default or event which with
notice or lapse of time or both would become an Event of Default with respect
to such Securities shall have occurred and be continuing on the date of such
deposit (after giving effect thereto) and, with respect to defeasance only, no event
described in Section 6.1(f) or (g) at any time during the period
ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).


 


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


 


(iv) In the case of an election under clause (b) of
this Section 12.2 for which the Place of Payment is within the United
States, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from the Internal Revenue
Service a letter ruling, or there has been published by the Internal Revenue
Service a Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such 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 defeasance had not
occurred.


 


(v) In the case of an election under clause (c) of
this Section 12.2 with respect to Requested Securities and for which the
Place of Payment is within the United States, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of such
Outstanding 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.


 


(vi) With respect to defeasance only, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that,
after the 91st day after the date of deposit, all money and Government
Obligations (or other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited or caused to be


 


70

















 


deposited with the Trustee (or other qualifying
trustee) pursuant to this clause (d) to be held in trust will not be
subject to recapture or avoidance as a preference in any case or proceeding
(whether voluntary or involuntary) in respect of the Company under any Federal
or State bankruptcy, insolvency, reorganization or other similar law, or any
decree or order for relief in respect of the Company issued in connection
therewith (for which purpose such Opinion of Counsel may assume that no Holder
is an “insider”).


 


(vii) With respect to defeasance only, the
Company shall have delivered to the Trustee an Officer’s Certificate as to
solvency and the absence of any intent of preferring the Holders over any other
creditors of the Company.


 


(viii) The Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance or covenant defeasance under clause (b) or
(c) of this Section 12.2 (as the case may be) have been complied
with.


 


(ix) Notwithstanding any other provisions of this
Section 12.2(d), such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to Section 3.1.


 


(e) Unless otherwise specified in or pursuant to
this Indenture, if, after a deposit referred to in Section 12.2(d)(i) has
been made, (i) the Holder of a Security in respect of which such deposit
was made is entitled to, and does, elect pursuant to Section 3.1 or the
terms of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 12.2(d)(i) has been made in
respect of such Security, or (ii) a Conversion Event occurs in respect of
the Foreign Currency in which the deposit pursuant to Section 12.2(d)(i) has
been made, the indebtedness represented by such Security shall be deemed to
have been, and will be, fully discharged and satisfied through the payment of
the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in
the case of payments made pursuant to clause (i) above, the applicable
market exchange rate for such Currency in effect on the second Business Day
prior to each payment date, or (y) with respect to a Conversion Event, the
applicable market exchange rate for such Foreign Currency in effect (as nearly
as feasible) at the time of the Conversion Event.


 


The Company shall pay and indemnify the Trustee (or
other qualifying trustee, collectively for purposes of this Section 12.2(d) and
Section 12.3, the “Trustee”) against any tax, fee or other charge, imposed
on or assessed against the Government Obligations deposited pursuant to this Section 12.2
or the principal or interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities.


 


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Anything in this Section 12.2 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (d) of
this Section 12.2 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 12.2.


 


Section 12.3 Application of Trust Money.


 


All money and obligations deposited with the Trustee
pursuant to Section 12.1 or 12.2 shall be held irrevocably in trust and
shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Company and the Trustee. Such money and
obligations shall be applied by the Trustee, in accordance with the provisions
of the Securities, this Indenture and such escrow trust agreement, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal of (and premium, if any) and interest, if
any, on the Securities for the payment of which such money and obligations have
been deposited with the Trustee. If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund
requirement, the Company shall give the required notice of redemption or shall
make such arrangements as are satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company.


 


Section 12.4 Repayment of Moneys Held by Paying
Agent.


 


In connection with the satisfaction and discharge of
this Indenture with respect to Securities of any series, all moneys with
respect to such series then held by any Paying Agent (and not required for such
satisfaction and discharge) shall, upon demand of the Company, be repaid to it
or paid to the Trustee and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.


 


Section 12.5 Return of Unclaimed Moneys Held by
Trustee and Paying Agent.


 


Any moneys deposited with or paid to the Trustee or
any Paying Agent for the payment of the principal of, or premium, if any, or
interest, if any, on, Securities of any series and which shall not be applied
but shall remain unclaimed by the Holders of Securities of such series for two
years after the date upon which such payment shall have become due and payable,
shall be repaid to the Company by the Trustee on demand; and the Holder of any
of such Securities entitled to receive such payment shall thereafter look only
to the Company for the payment thereof; provided, however, that the Company or
the Trustee, before making any such repayment, shall at the expense of the
Company cause to be published once a week for two successive weeks (in each
case on any day of the week) in an Authorized Newspaper, or mail to each
Holder, or both, a notice that said moneys have not been so applied and that
after a date


 


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named therein any unclaimed balance of said moneys
then remaining will be returned to the Company.


 


If the Trustee or Paying Agent is unable to apply any
money in accordance with Section 12.3 by reason of 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 shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.1 or Section 12.2 until
such time as the Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 12.3; provided, however, that if the Company
makes any payment of interest on or principal of, or any Additional Amounts,
with respect to any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying Agent.


 


ARTICLE
13

SUBORDINATION OF SECURITIES


 


Section 13.1 Agreement to Subordinate.


 


The Company covenants and agrees, and each Holder of
Securities issued hereunder and under any indenture supplemental hereto or
pursuant to a Board Resolution and Officers’ Certificate (“Additional
Provisions”) by such Holder’s acceptance thereof likewise covenants and agrees,
that all Securities shall be issued subject to the provisions of this ARTICLE
13; and each Holder of a Security, whether upon original issue or upon transfer
or assignment thereof, accepts and agrees to be bound by such provisions.


 


The payment by the Company of the principal of, any
premium and interest on and any Additional Amounts with respect to all
Securities of each series issued hereunder and under any Additional Provisions
shall, to the extent and in the manner hereinafter set forth and subject to the
provisions of the related supplemental indenture, be subordinate in right of
payment to the prior payment in full of all Senior Indebtedness with respect to
such series, whether outstanding at the date of this Indenture or thereafter
incurred.


 


No provision of this ARTICLE 13 shall prevent the
occurrence of any default or Event of Default hereunder.


 


Section 13.2 Default on Senior Indebtedness.


 


In the event and during the continuation of any
default by the Company in the payment of principal, premium, interest or any
other amount due on any Senior Indebtedness with respect to the Securities of
any series, or in the event that the maturity of any Senior Indebtedness with
respect to the Securities of any series has been accelerated because of a
default, then, in either case, no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund payments) of,
any premium or interest on, or any Additional Amounts with respect to, the
Securities of such series or to acquire such Securities (other than pursuant to
the conversion of such Securities).


 


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In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 13.2, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of such Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of such Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in writing
within 90 days of such payment of the amounts then due and owing on such Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of such Senior Indebtedness.


 


Section 13.3 Liquidation; Dissolution;
Bankruptcy.


 


Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any total or partial dissolution, winding-up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other similar proceedings relating to the Company or its
assets, all amounts due upon all Senior Indebtedness with respect to the
Securities of any series shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal of, premium or interest on, or
Additional Amounts with respect to, the Securities of such series; and in any
such case, any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee (on behalf of Holders with respect to the principal of,
premium or interest on or Additional Amounts with respect to, the Securities of
such Series) would be entitled to receive from the Company, except for the
provisions of this ARTICLE 13, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders or by the Trustee under this
Indenture if received by them or it, directly to the holders of such Senior
Indebtedness (pro rata to such holders having equal seniority on the basis of
the respective amounts of such Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in full, in money or money’s worth, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders of the Securities of
such series or to the Trustee.


 


In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing shall be
received by the Trustee before all such Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee


 


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or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company, for application
to the payment of all such Senior Indebtedness remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness.


 


For purposes of this ARTICLE 13, the words “cash, property
or securities” shall not be deemed to include common shares of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
ARTICLE 13 with respect to the Securities of the relevant series to the payment
of all Senior Indebtedness with respect to the Securities of such series that
may at the time be outstanding, provided that (i) such Senior Indebtedness
is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and  (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation or amalgamation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance, transfer or
lease of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided for in ARTICLE 11 of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 13.3 if such other Person
shall, as a part of such consolidation, amalgamation, merger, conveyance or
transfer, comply with the conditions stated in ARTICLE 11 of this Indenture.


 


Section 13.4 Subrogation.


 


Subject to the payment in full of all Senior
Indebtedness with respect to the Securities of any series, the rights of the
Holders of the Securities of such series shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to such Senior
Indebtedness until the principal of, any premium and interest on, and any
Additional Amounts with respect to, the Securities of such series shall be paid
in full; and, for the purposes of such subrogation, no payments or distributions
to the holders of such Senior Indebtedness of any cash, property or securities
to which the Holders or the Trustee would be entitled except for the provisions
of this ARTICLE 13, and no payment over pursuant to the provisions of this
ARTICLE 13 to or for the benefit of the holders of such Senior Indebtedness by
Holders of the Securities of such series or the Trustee, shall, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Securities of such series, be deemed to be a payment by the
Company to or on account of such Senior Indebtedness. It is understood that the
provisions of this ARTICLE 13 are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities of each series,
on the one hand, and the holders of the Senior Indebtedness with respect to the
Securities of such series on the other hand.


 


Nothing contained in this ARTICLE 13 or elsewhere in
this Indenture, any Additional Provisions or in the Securities of any series is
intended to or shall impair, as between the


 


75

















 


Company, its creditors other than the holders of
Senior Indebtedness with respect to the Securities of such series, and the
Holders of the Securities of such series, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Securities of such
series the principal of, any premium and interest on, and any Additional
Amounts with respect to, the Securities of such series as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders of the Securities of such
series and creditors of the Company, other than the holders of such Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security of such series from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this ARTICLE 13 of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company, as the
case may be, received upon the exercise of any such remedy.


 


Upon any payment or distribution of assets of the
Company referred to in this ARTICLE 13, the Trustee, subject to the provisions
of ARTICLE 7 of this Indenture, and the Holders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities of any series, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness with
respect to the Securities of such series and other indebtedness of the Company,
as the case may be, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this ARTICLE 13.


 


Section 13.5 Trustee to Effectuate Subordination.


 


Each Holder of Securities by such Holder’s acceptance
thereof authorizes and directs the Trustee on such Holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this ARTICLE 13 and appoints the Trustee such Holder’s
attorney-in-fact for any and all such purposes.


 


Section 13.6 Notice by the Company.


 


The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Securities of any series pursuant to the provisions of this ARTICLE 13.
Notwithstanding the provisions of this ARTICLE 13 or any other provision of
this Indenture or any Additional Provisions, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Securities of any
series pursuant to the provisions of this ARTICLE 13, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness with respect to
the Securities of such series or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
ARTICLE 7 of this Indenture, shall be entitled


 


76

















 


in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 13.6 at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of, any
premium or interest on, or any Additional Amounts with respect to, any Security
of such series), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by
it within two Business Days prior to such date.


 


The Trustee, subject to the provisions of ARTICLE 7 of
this Indenture, shall be entitled to conclusively rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness with respect to the Securities of any series (or a trustee on
behalf of such holder), to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. 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
such Senior Indebtedness to participate in any payment or distribution pursuant
to this ARTICLE 13, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this ARTICLE 13, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.


 


Upon any payment or distribution of assets of the
Company referred to in this ARTICLE 13, the Trustee and the Holders shall be
entitled to conclusively rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding-up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of the Securities of any series, for the
purpose of ascertaining the Persons entitled to participate in such payment or distribution,
the holders of Senior Indebtedness with respect to the Securities of such
series 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 13.


 


Section 13.7 Rights of the Trustee; Holders of
Senior Indebtedness.


 


The Trustee in its individual capacity shall be
entitled to all the rights set forth in this ARTICLE 13 in respect of any
Senior Indebtedness with respect to the Securities of any series at any time
held by it, to the same extent as any other holder of such Senior Indebtedness,
and nothing in this Indenture or any Additional Provisions shall deprive the
Trustee of any of its rights as such holder.


 


77

















 


With respect to the holders of Senior Indebtedness
with respect to the Securities of any series, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically
set forth in this ARTICLE 13, and no implied covenants or obligations with
respect to the holders of such Senior Indebtedness shall be read into this
Indenture or any Additional Provisions against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of ARTICLE 7 of this Indenture, the
Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall mistakenly or otherwise pay over or deliver to Holders of the Securities
of such series, the Company or any other Person money or assets to which any
holder of such Senior Indebtedness shall be entitled by virtue of this ARTICLE
13 or otherwise.


 


Nothing in this ARTICLE 13 shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 7.6.


 


Section 13.8 Subordination May Not Be
Impaired.


 


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


 


Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness with respect to the
Securities of any series may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of Securities of such
series, without incurring responsibility to such Holders and without impairing
or releasing the subordination provided in this ARTICLE 13 or the obligations
hereunder of the Holders of the Securities of such series to the holders of
such Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of such Senior Indebtedness; and (iv) exercise
or refrain from exercising any rights against the Company and any other Person.


 


Section 13.9 Application by Trustee of Assets
Deposited with It.


 


Amounts deposited in trust with the Trustee pursuant
to and in accordance with this Indenture, including without limitation pursuant
to ARTICLE 12 hereof, shall be for the sole benefit of the Holders of the
Securities and, to the extent allocated for the payment of Securities, shall
not be subject to the subordination provisions of this ARTICLE 13. Otherwise,
any deposit of assets with the Trustee or any Paying Agent (whether or not in
trust) for the payment of any Securities shall be subject to the provisions of
Sections 13.1, 13.2, and 13.3;


 


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provided that, if prior to two Business Days preceding
the date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of
any amount due on any Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided for in Section 13.6,
then the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.


 


ARTICLE
14

MISCELLANEOUS PROVISIONS


 


Section 14.1 Incorporators, Shareholders,
Officers and Directors of Company Exempt from Individual Liability.


 


No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or for any claim
based thereon or otherwise in respect thereof, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future shareholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise 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, shareholders, officers or directors, as such, of the Company, 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 Security 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, shareholder, 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 Security or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Security.


 


Section 14.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders.


 


Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors, the Holders of the Securities and
holders of Senior Indebtedness, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and the Holders of the Securities.


 


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Section 14.3 Successors and Assigns of Company
Bound by Indenture.


 


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 14.4 Notices to Holders; Waiver.


 


Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed by first-class mail, postage
prepaid, to such Holders as their names and addresses appear on the Securities
Register within the time prescribed.


 


Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance on such waiver. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed to any particular Holder, shall affect the
sufficiency of such notice with respect to other Holders, and any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given. In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In case by reason of the suspension of publication of any Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish
any notice to Holders otherwise required or permitted under this Indenture,
then such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.


 


Section 14.5 Addresses for Notices.


 


Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities of any series on the Company may be given or served
by registered mail addressed (until another address is filed by the Company
with the Trustee) as follows: Montpelier Re Holdings Ltd., Montpelier House, 94
Pitts Bay Road, Hamilton HM 08, Bermuda, Attention: Chief Operating Officer.
Any notice, direction, request or demand by the Company or any Holders of
Securities of any series to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if received at the Corporate
Trust Office of such Trustee.


 


Section 14.6 Officer’s Certificates and Opinions
of Counsel; Statements to Be Contained Therein.


 


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 Officer’s Certificate stating that all
conditions precedent (including any covenants compliance


 


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with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including any covenants compliance with
which constitutes a condition 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.


 


Each certificate or opinion provided for in this
Indenture (other than annual certificates provided pursuant to Section 4.8)
and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that
the Person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in the
opinion of such 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 (d) a statement as
to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.


 


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


 


Any certificate, statement or opinion of an officer of
the Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Company, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.


 


Any certificate or opinion of any independent firm of
public accountants filed with the Trustee shall contain a statement that such
firm is independent.


 


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Section 14.7 Separability Clause.


 


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


 


Section 14.8 Legal Holidays.


 


In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day
in any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities, other than a provision in Securities of any
series, or any Tranche thereof, or in the indenture supplemental hereto, Board
Resolution or Officer’s Certificate that establishes the terms of the
Securities of such series or Tranche, which specifically states that such
provision shall apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such Business Day.


 


Section 14.9 Conflict of Any Provision of
Indenture with Trust Indenture Act.


 


If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the former provision shall control.


 


Section 14.10 Governing Law.


 


This Indenture and each Security shall be deemed to be
a contract governed by and construed in accordance with the laws of the State
of New York applicable to agreements made or instruments entered into and, in
each case, performed in said state.


 


Section 14.11 Judgment Currency.


 


The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of, or premium or interest, if any, or Additional
Amounts on the Securities of any series (the “Required Currency”) into a currency
in which a judgment will be rendered (the “Judgment Currency”), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in the City of New York the requisite
amount of the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which a final unappealable judgment is given
and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not


 


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be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.


 


Section 14.12 No Security Interest Created.


 


Nothing in this Indenture or in any Securities,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.


 


Section 14.13 Submission to Jurisdiction.


 


The Company agrees that any judicial proceedings
instituted in relation to any matter arising under this Indenture, the
Securities appertaining thereto may be brought in any United States Federal or
New York State court sitting in the Borough of Manhattan, The City of New York,
New York to the extent that such court has subject matter jurisdiction over the
controversy, and, by execution and delivery of this Indenture, the Company
hereby irrevocably accepts, generally and unconditionally, the jurisdiction of
the aforesaid courts, acknowledges their competence and irrevocably agrees to
be bound by any judgment rendered in such proceeding. The Company also
irrevocably and unconditionally waives for the benefit of the Trustee and the
Holders of the Securities any immunity from jurisdiction and any immunity from
legal process (whether through service or notice, attachment prior to judgment,
attachment in the aid of execution, execution or otherwise) in respect of this
Indenture. The Company hereby irrevocably designates and appoints for the
benefit of the Trustee and the Holders of the Securities for the term of this
Indenture CT Corporation System, 111 Eighth Avenue, New York, New York 10011,
as its agent to receive on its behalf service of all process (with a copy of
all such service of process to be delivered to Montpelier Re Holdings Ltd.,
Montpelier House, 94 Pitts Bay Road, Hamilton HM 08, Bermuda, Attention: Chief
Financial Officer) brought against it with respect to any such proceeding in
any such court in The City of New York, such service being hereby acknowledged
by the Company to be effective and binding service on it in every respect
whether or not the Company shall then be doing or shall have at any time done
business in New York. Such appointment shall be irrevocable so long as any of
the Securities or the obligations of the Company hereunder remain outstanding
until the appointment of a successor by the Company and such successor’s
acceptance of such appointment. Upon such acceptance, the Company shall notify
the Trustee in writing of the name and address of such successor. The Company
further agrees for the benefit of the Trustee and the Holders of the


 


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Securities to take any and all action, including the
execution and filing of any and all such documents and instruments, as its
agent in full force and effect so long as any of the Securities or the
obligations of the Company hereunder shall be outstanding. The Trustee shall
not be obligated and shall have no responsibility with respect to any failure
by the Company to take any such action. Nothing herein shall affect the right
to serve process in any other manner permitted by any law or limit the right of
the Trustee or any Holder to institute proceedings against the Company in the
courts of any other jurisdiction or jurisdictions.


 


Section 14.14 Counterparts.


 


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


 


Section 14.15 Effect of Headings.


 


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


 


ARTICLE
15

REDEMPTION OF SECURITIES


 


Section 15.1 Applicability of Article.


 


The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their
Stated Maturity except as otherwise specified as contemplated by Section 3.1
for Securities of such series.


 


Section 15.2 Notice of Redemption; Selection of
Securities.


 


In case the Company shall desire to exercise the right
to redeem all or, as the case may be, any part of the Securities of any series
in accordance with their terms, it shall fix a Redemption Date and shall
provide notice of such redemption at least 45 days prior to such Redemption
Date to the Trustee and at least 30 days but no more than 60 days prior to such
Redemption Date to the Holders of Securities of such series so to be redeemed
as a whole or in part in the manner provided in Section 14.4, unless a
different period is specified in the Securities to be redeemed. The notice
provided in the manner herein specified shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.


 


Each such notice of redemption shall specify the
Redemption Date, the Redemption Price, the CUSIP or other comparable number,
the Place or Places of Payment, that the Securities of such series are being
redeemed at the option of the Company pursuant to provisions contained in the
terms of the Securities of such series or in a supplemental indenture


 


84

















 


establishing such series, if such be the case,
together with a brief statement of the facts permitting such redemption, that
payment will be made upon presentation and surrender of the applicable
Securities at the Place or Places of Payment, that the Redemption Price
together with any interest accrued and Additional Amounts to the Redemption
Date will be paid as specified in said notice, and that on and after said
Redemption Date any interest thereon or on the portions thereof to be redeemed
will cease to accrue, and any information that is required to be included
therein by the Depository.


 


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


 


On or before the Redemption Date with respect to the
Securities of any series stated in the notice of redemption given as provided
in this Section 15.2, the Company will deposit with the Trustee or with
one or more Paying Agents an amount of money (except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series or if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 4.3) sufficient to redeem on such Redemption Date all
the Securities or portions thereof so called for redemption at the applicable
Redemption Price, together with accrued interest on and Additional Amounts with
respect thereto, to such Redemption Date.


 


If fewer than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the Company shall give notice of
redemption to the Trustee not less than 60 days prior to the Redemption Date as
to the aggregate principal amount of Securities to be redeemed.


 


If a Holders’ Redemption Agreement, as hereinafter
defined, is not on file with the Trustee and in effect, the particular
Securities to be redeemed shall be selected by the Trustee, from the
Outstanding Securities of such series or Tranche not previously called for
redemption, substantially pro rata, by lot or by any other method the Trustee
considers fair and appropriate and that complies with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed, and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
Tranche or any integral multiple thereof) of the principal amount of Securities
of such series or Tranche of a denomination larger than the minimum authorized
denomination for Securities of that series or Tranche; provided that in case
the Securities of such series or Tranche have different terms and maturities,
the Securities to be redeemed shall be selected by the Company and the Company
shall give notice thereof to the Trustee; provided, however, that if, as
indicated in an Officer’s Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities then Outstanding of any
series, or any Tranche thereof, and


 


85

















 


fewer than all of such Securities as to which such
offer was made shall have been tendered to the Company for such purchase, the
Trustee, if so directed by Company Order, shall select for redemption all or
any principal amount of such Securities which have not been so tendered.


 


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


 


If at the time the Company shall have given notice of
redemption to the Trustee in accordance with Section 15.2, there shall be
on file with the Trustee and in effect a Holders’ Redemption Agreement, as
hereinafter defined, then the Trustee shall select, in accordance with the
provisions of said Holders’ Redemption Agreement, the Securities or parts
thereof to be redeemed.


 


For the purposes of this Indenture, the term “Holders’
Redemption Agreement” shall mean an agreement, reasonably satisfactory to the
Trustee, executed as provided in this Section, which provides for the method to
be followed by the Trustee in selecting Securities or parts of Securities for
redemption out of any funds held by the Trustee to be applied to such
redemption. A Holders’ Redemption Agreement may be made with respect to a
single series of Securities, or Tranche thereof, in which case it shall be
executed by or on behalf of the Holders of all Outstanding Securities of such
series or Tranche, or it may be made with respect to all Outstanding Securities
in which case it shall be executed by or on behalf of the Holders of all
Securities Outstanding hereunder.


 


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


 


Section 15.3 Payment of Securities Called for
Redemption.


 


If notice of redemption has been given as above
provided and the Company has deposited, on or before the Redemption Date, with
the Trustee (and/or having irrevocably directed the Trustee to apply, from
money held by it available to be used for the redemption of Securities) an
amount in cash sufficient to redeem all of the Securities to be redeemed, the
Securities or portions of Securities of the series specified in such notice
shall become due and payable on the Redemption Date, and at the place or places
stated in such notice at the applicable Redemption Price, together with any
interest accrued to such Redemption Date, and on and after said Redemption Date
any interest on the Securities or portion of Securities of any series so called
for redemption shall cease to accrue. On presentation and surrender of such
Securities at a Place of Payment in such notice specified, such Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption


 


86

















 


Price, together with any interest accrued and
Additional Amounts to the Redemption Date, except that if such Redemption Date
is an Interest Payment Date, interest shall be paid as provided in Section 3.8.


 


Upon presentation of any Security redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the expense
of the Company, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.


 


If a Security in global form is so surrendered, the
Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall
be specified in the Company Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.


 


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


 


ARTICLE
16

SINKING FUNDS


 


Section 16.1 Applicability of Article.


 


The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.1 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”.


 


Section 16.2 Satisfaction of Mandatory Sinking
Fund Payment with Securities.


 


In lieu of making all or any part of any mandatory
sinking fund payment with respect to any Securities of a series in cash, the
Company may at its option, at any time but not less than 45 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series theretofore purchased or otherwise acquired by the
Company, except Securities of such series which have been redeemed through the
application of mandatory sinking fund payments pursuant to the terms of the
Securities of such series, accompanied by a company order instructing the
Trustee to credit such obligations and stating that the Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value; provided that such Securities have not been previously so
credited. Such


 


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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 mandatory sinking fund and the amount of
such mandatory sinking fund payment shall be reduced accordingly.


 


Section 16.3 Redemption of Securities for Sinking
Fund.


 


Not less than 60 days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee a certificate signed by a Vice President, the Treasurer or any
Assistant Treasurer of the Company specifying the amount of the next ensuing
sinking fund payment for such series pursuant to the terms of such series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of such series pursuant to Section 16.2 and whether the Company
intends to exercise its rights to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall be irrevocable and
upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the case of the failure of the Company to deliver such
certificate (or to deliver the Securities, if any, specified in such
certificate within the time period specified in Section 16.2), unless
otherwise agreed by the Trustee, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Securities
of such series subject to a mandatory sinking fund payment without the right to
deliver or credit Securities as provided in Section 16.2 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.


 


Any sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding sinking fund
payments made with respect to the Securities of any particular series shall be
applied by the Trustee (or by the Company if the Company is acting as its own
Paying Agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of
Securities of such series at the Redemption Price specified in such Securities
with respect to the sinking fund together with accrued interest, if any, to the
applicable Redemption Date. Any sinking fund moneys not so applied or allocated
by the Trustee (or by the Company if the Company is acting as its own Paying
Agent) to the redemption of Securities shall be added to the next sinking fund
payment received by the Trustee (or if the Company is acting as its own Paying
Agent, segregated and held in trust as provided in Section 4.3) for such
series and, together with such payment (or such amount so segregated) shall be
applied in accordance with the provisions of this Section 16.3. Any and
all sinking fund moneys with respect to the Securities of any particular series
held by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 4.3) on the last
sinking fund payment date with respect to Securities of such series and not
held for the payment or redemption of particular Securities of such series
shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.


 


88

















 


The Trustee shall select or cause to be selected the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 15.2 and the Company shall cause notice of the
redemption thereof to be given in the manner provided in Section 15.2
except that the notice of redemption shall also state that the Securities are
being redeemed by operation of the sinking fund and whether the sinking fund
payment is mandatory or optional, or both, as the case may be. Such notice
having been duly given, the redemption of the Securities shall be made upon the
terms and in the manner stated in Section 15.3.


 


On or before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own
Paying Agent, will segregate and hold in trust as provided in Section 4.3)
in cash a sum equal to the principal and any interest accrued to the Redemption
Date for Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section.


 


Neither the Trustee nor the Company shall redeem any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund for
such series during the continuance of a default in payment of interest, if any,
on any Securities of such series or of any Event of Default (other than an
Event of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series, except that if the notice of redemption shall
have been provided in accordance with the provisions hereof, the Trustee (or
the Company if the Company is acting as its own Paying Agent) shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Company) for that purpose in accordance with the
terms of this Article. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities of such series; provided, however, that in case such
Event of Default or default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next sinking fund payment date
for the Securities of such series on which such moneys may be applied pursuant
to the provisions of this Section.


 


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IN WITNESS WHEREOF, Montpelier Re Holdings Ltd. has
caused this Indenture to be duly executed as a deed as of the date above
written.


 


	
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IN WITNESS WHEREOF, the undersigned, being duly
authorized, has executed this Indenture as of the date first above written.


 


	
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  AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
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